Papers Relating to the Foreign Relations of the United States, With the Address of the President to Congress December 5, 1916

File No. 817.812/257

Minister Hale to the Secretary of State

No. 102

American Legation,
San José, October 16, 1916.

Sir: I have the honor to report that I have received from the Foreign Office a note which says (translated):

In view of the fact that your excellency’s Government may be interested in knowing the decision rendered by the Central American Court of Justice in the demand filed by the Government of Costa Rica against the Republic of Nicaragua, which demand refers to the Bryan-Chamorro Treaty, I have the honor of transmitting to you, attached, a copy of La Gaceta-Diario Oficial of the 7th instant, in which is published the said decision.

In fulfilling this debt of courtesy, I have [etc.]

Enclosure is the copy of La Gaceta-Diario Oficial referred to in the Foreign Office’s note.

I have [etc.]

E. J. Hale

[Inclosure—Translation]

[Untitled]

Central American Court of Justice,
San José, Costa Rica, 7 o’clock p.m. of September 30, 1916.

Having seen, for the purpose of passing thereupon after performing the legal formalities, the proceedings begun and sustained by the Government of the Republic of Costa Rica against the Government of Nicaragua on account of the latter having concluded with the United States Government a treaty relating to the construction of an interoceanic canal.

Preliminary Chapter

Whereas: On March 24 of the present year, Licenciado Luis Castro Ureña, on behalf and in representation of the Government of Costa Rica, according to the power of attorney which he exhibited for the purpose, presented to this court a suit against the Government of Nicaragua, setting forth the grounds, of fact and law, on which he bases his claim, as well as the evidence which he considered pertinent to the action begun.

I

As the court happened to be incomplete, owing to the absence of the member from Nicaragua, and being therefore unable to decide as to the first step to be taken on the suit filed, the Permanent Commission proceeded to take the necessary measures for the immediate convening of the court in full, for which purpose it sent a telegram to the absent official asking him, if he deemed proper, to give up the enjoyment of the days of leave which still remained to him, for the reason that a suit had been filed by the Government of Costa Rica against the Government of his own country; and, anticipating that the said Magistrate might be unable to return immediately to occupy his post, the Permanent Commission also communicated the case to his excellency the Minister of Foreign Relations of Nicaragua, asking him to issue the necessary instructions in order that the proper substitute judge might come and make up the quorum of the court.

Whereas: In answer to the invitation, the absent Magistrate replied that he would endeavor to return to Costa Rica on the next steamer and that in case it were impossible for him to do so, he would give immediate notice to the Department of Foreign Affairs of his country; and this High Official on his part, in a telegram dated April 1, stated that he was apprised of the suit filed before the Court and that he considered answered the telegraphic communication which had been sent him by the Secretary of the Permanent Commission, by transcribing the reply he had given to His Excellency the Secretary of Foreign Affairs of Costa Rica when the latter gave notice, in turn, of the filing of the suit and of the grounds which actuated the Government of Costa Rica in bringing the action. In the reply mentioned the Nicaraguan Foreign Office states, among other things, that its Government, in reaching an agreement with the United States Government on the matter concerning which the suit is brought, confined itself to the exclusive territorial limits of Nicaragua, which belonged to it as an independent State, in endeavoring solely to promote its welfare and progress and entirely respecting the integrity and the legitimate rights of the other Central American Republics. And whereas Nicaragua has at all times been fully able to conclude treaties of the nature of the Chamorro-Bryan Treaty and is by no means disposed to consent that it be disputed in its exclusive rights of sovereignty as inherent in the Nation. And whereas, as far as Costa Rica is concerned, all questions which were pending at a previous period with Nicaragua in regard to boundaries and to participation in the Interoceanic Canal were settled once and forever by the award of President Cleveland.³ And whereas Nicaragua has strictly complied with that award, just as she will comply therewith when it comes to granting concessions for constructing the interoceanic canal; but as regards the rights which the award insures to Nicaragua as sole sovereign over the territory on which said canal would be constructed and as absolute owner of the profits which the country may reserve to itself in compensation for the favors and privileges granted by its Government, it will not permit them to be placed in judgment, for by its very nature the award is not subject to revision or interpretation by any tribunal of arbitration. And whereas it is beyond the jurisdiction of the Central American Court of Justice to admit a suit such as that brought by the Costa Rican Government, for according to Article I of the Washington Convention creating the Court, the latter can acquire the character of a Tribunal of Arbitration only in order to take cognizance of controversies or questions arising between the contracting parties in case the respective Foreign Offices have been unable to come to an agreement, and the participation of the Court is permissible only, in accordance with the tenor of the article cited, in case no agreement has been possible among the parties after the necessary diplomatic controversy has taken place. And whereas the Department of Foreign Affairs of Costa Rica has at no time expressed to that of Nicaragua, directly or indirectly, even an inkling that would reveal the disagreement of the Costa Rican Government regarding the conclusion of the Chamorro-Bryan Treaty; and whereas, for these reasons the Nicaraguan Government considers the suit brought to be impertinent and without the jurisdiction of the Central American Court of Justice, and, being sure that it is right, it trusts that this (the justice of its contention) will be fully recognized by the tribunal, which will therefore abstain from any proceeding; and whereas, the action of the Central American Court of Justice in this matter being null and in violation of the Washington Convention of 1907, the Nicaraguan Government hopes that the Court will refrain from taking cognizance of the case out of respect for the clear, explicit and positive wording of the Compact.

II

In a telegram April 26 of this year, the Nicaraguan Foreign Office transcribed to this Court the answer it had given to another dispatch from the Costa Rican Foreign Office; and this answer ratifies and enlarges upon the ideas embodied in the message referred to in the preceding paragraph, adding that Costa Rica aspires to have the Court declare Nicaragua legally disqualified to conclude conventions of the nature of that signed on August 5, 1914, between the latter Republic and the United States; and that in this connection the Nicaraguan Government hastens to declare again that Nicaragua has not only always been and will always be perfectly qualified from a legal standpoint to conclude and execute conventions of that nature, but that she considers it offensive to her honor as a free and independent nation to discuss acts which are peculiar to her sovereignty and which cannot in any case be the subject of arbitration; that as regards the Cleveland Award, regarding whose interpretation Costa Rica thinks there are differences of opinion which ought to be taken into account by the Central American Court, which should state which of the two Governments is in the right, the Nicaraguan Foreign Office remarks that, as the award in question decided once and for all the differences which formerly existed between the two countries in connection with the boundaries and participation in the interoceanic canal, there is no room for belief, owing to the nature of that decision, that the question is subject to the interpretation of any Tribunal of Arbitration, for if arbitral decisions were subject to revision at the will of any of the parties, an award of that character would never become final in nature and the disputes between nations would never end. And whereas, moreover, there is no doubt but that the right possessed by the Central American Court of Justice to act in certain cases as a Tribunal of Arbitration is expressly confined to those questions which may arise between nations after the date on which the convention concerned went into force with respect to the contracting parties; but under no pretext, even violating the letter and spirit of the compact, could this right be extended to cases decided prior thereto; and on the other hand there is no disagreement existing between the two Governments in regard to the mode of interpreting the Cleveland Award; and supposing that the Costa Rican Government should come to have doubts as to the value and scope of that award, this Court would not in any case be the one called upon to interpret it, nor would those doubts affect the Chamorro-Bryan Treaty, which is wholly disconnected with the case. And whereas for these reasons the suit lacks any ground or basis; and in view of what was stated above and for the other reasons adduced in the telegram of April 1, the Central American Court of Justice ought to refuse to entertain the suit filed by the Costa Rican Government, for otherwise it would commit a flagrant violation of the convention which created it, besides which any action it might take would be null and void.

III

Owing to the return of the Nicaraguan magistrate, the Court again had its legal quorum on April 24, and in a session of May 1 it took into consideration the suit filed, which contained the following matter which is set forth in separate parts in Chapters I and. II of this award.

first part

Chapter I

reasons of fact

Whereas: The representative of the High Complainant Party stated in his petition the following grounds:

I

At the beginning of April, 1913, the Government which he represents became aware, through private channels, that the Legislative Assembly of Nicaragua had just given its approval in secret sessions to a Treaty, also secret, concluded between the Government of Nicaragua and that of the United States for the opening of an interoceanic canal through Nicaraguan territory, among other things. This initial notice led the Costa Rican Government to instruct its Minister in Nicaragua to address to the Government of the latter Republic a formal diplomatic protest against the ratification of the Compact in question, relating to a canal, inasmuch as the Costa Rican Government thought and continues to think that this act constitutes a flagrant violation of the treaties existing between the two countries and of the Cleveland Award:

II

During the same days when the aforementioned diplomatic protest occurred the Minister Plenipotentiary of Costa Rica at Washington, following instructions from his Government, presented to the United States Government another diplomatic protest against the conclusion, by Nicaragua, of the aforesaid Canal Convention, stating in the protest, as had been done in that made to the Nicaraguan Government, that the Convention could not help being held void as of right, in view of the lack of legal standing (“personality”) of Nicaragua to conduct negotiations along these lines without first consulting the opinion of Costa Rica in regard thereto and even obtaining her acquiescence, as the case might be.

III

His Excellency the Minister of Foreign Affairs of Nicaragua, in a note of June 12, 1913, answered the protest of the Costa Rican Minister by stating to him that

the Government of Nicaragua made use of an indisputable right of sovereignty in concluding with the United States the Convention of February 8, 1913, which it keeps secret owing to considerations of an international character in which it is not alone concerned; however, it positively declares that in concluding this compact it did not disregard any right belonging to Costa Rica; nor did it commit a violation of the treaties existing between the two nations; that the convention “tends to seek as far as possible the construction of the interoceanic canal by an exclusively Nicaraguan route;” that “it is merely a question of a right of preference, granted to the United States, for the opening up of an interoceanic waterway along the route to be designated in the national territory, when the excavation is decided upon by agreement of both Governments and it is determined by means of a convention or treaty between the two parties what shall be the conditions under which the canal is to be constructed, operated, and maintained;” that “inasmuch as it is a mere matter of option regarding a canal concession, Nicaragua, as sole sovereign of the territory which would be the seat of the gigantic enterprise, is entirely within her indisputable rights in making the aforesaid promise by and before herself;” and that “Owing to all the foregoing the ideas embodied in the note giving rise to the present communication are in every respect without ground, for, as it has been demonstrated, with abundance of reasons and arguments, there was not, at the time of conclusion of the said convention, any violation on the part of Nicaragua of existing treaties nor discourtesy toward Costa Rica, neither was there a disregard or forgetting of her legitimate rights.”

IV

La Republica, an independent newspaper of this city, in its No. 8810 of July; 4, 1913, published the text of the treaty which, according to the same newspaper, had been framed between the Governments of Nicaragua and the United States relating to the opening of the canal to which reference has been made; and although the Government attributed no authenticity to the publication, it wishes to state that it does not appear that the Nicaraguan Government, upon learning of the fact, repudiated the report either through the press or otherwise, and that La Republica was a newspaper which was a violent opponent of the Costa Rican Government.

The Minister of Costa Rica in Nicaragua, fulfilling instructions from his Government, sent to the Nicaraguan Government a copy of the aforesaid number of the said newspaper, together with a note in which he asked the addressee to kindly

have a categorical statement made as to whether said convention is authentic, both in general and as to each of its clauses, and, in the contrary event, to have the proper rectifications made.

His excellency the Secretary of Foreign Affairs of Nicaragua in a note of August 4, 1913, replied to the aforesaid communication of the Honorable Costa Rican Minister,

confirming the statement made in his note of June 12, of the same year, to the effect that, owing to the considerations of an international character, which concern not his Government alone, the latter is keeping secret the convention concluded with the United States on February 8, 1913; and that it was a question of a compact which had not yet been perfected, for which reason it is not permissible for the Nicaraguan Government to make any official declaration along the line suggested in his aforementioned note, in regard to any of the points that might be embraced in the negotiation.

V

Afterwards his Government learned through the unofficial American press that the American Senate was considering a treaty which the Costa Rican Government supposed was the same one that had been produced by La Republica as referred to above and also the same one alluded to by his excellency the Secretary of Foreign Affairs of Nicaragua in his notes of June 12 and August 4, 1913, signed by the Governments of the United States and Nicaragua, relating to the opening of a canal through Nicaraguan territory, and to other matters not at that time of importance to his Government; and he likewise learned of some steps that had been taken by private individuals interested in Costa Rica before certain Senators to the end that, when the treaty should come up for discussion and if it were sanctioned, the rights of the country might not be slighted with respect to the construction of any interoceanic canal, but that they might on the contrary be respected and guaranteed.

VI

About the middle of August, 1914, the Costa Rican Government was assured extrajudicially that the aforesaid Nicaraguan Canal Treaty had in fact been tacitly withdrawn from the consideration of the United States Senate, but that that high body was at the time considering another compact similar in substance (if not identical), at least as regards the Nicaraguan Canal, being stipulated between the same High Contracting Parties as the first one, that is, the one dated February 8, 1913; but the Costa Rican Government had no official intimation as to this new compact, nor as to the signature or contents of the other arrangement; neither did it have any knowledge of the stage at that time reached by the negotiation in question, for in this regard everything was carried on under the strictest secrecy, on the part of both Nicaragua and the United States.

VII

For these reasons the Costa Rican Government was unable to make any specific charges against the Treaty of February 8, 1913, regarding an interoceanic canal through Nicaraguan territory, nor could it attack, otherwise than in general terms, any similar agreement reached subsequently between the same parties, for, against its explicit and solemn promise, the first care of Nicaragua on that occasion had been to conceal the canal negotiations to Costa Rica by all means and at all events.

VIII

The remainder of 1913 and the whole of 1914 elapsed without the North American Senate defining or resuming its action on the matter of a canal through Nicaragua, or at least the Costa Rican Government did not receive any information to the contrary; and when the controversy no longer perturbed the minds of Costa Ricans, the Evening Star of February 2 of this year reported that the Committee on Foreign Relations of the North American Senate had recommended to the sanction of the high body the Treaty which the United States Government had concluded more than a year ago with the Government of Nicaragua, among other purposes for the construction of an interoceanic canal through Nicaraguan territory.

IX

In view of the notice published by the newspaper in question, the Costa Rican Legation at Washington hastened to send to the State Department of the United States a systematic note in which the Government of that country was requested to prevent the completion by the Senate of the compact referred to, for the reason that it was in opposition to the treaties in force between Costa Rica and Nicaragua, to the Cleveland Award and to the harmonious tendencies which characterize the Chief Executive of the United States with respect to all the American nations, according to his recent public and official declarations made before more than a thousand delegates from the various nations which constitute the American Continent;² and, following the same purpose, Mr. Harry W. Van Dyke, attorney for the Costa Rican Legation at Washington, published a memorandum addressed to the American Senate; but this effort failed, as did also the endeavors of the Diplomatic Representative of Costa Rica at Washington, since the Congressional Record of February 18 of this year contained the notice that the Senate of the United States of America, in executive session of the same day, had ratified and promulgated a Convention between said Republic and that of Nicaragua, signed at Washington on August 5, 1914, which, with the additions agreed upon by that high chamber, and translated into Spanish by the attorney representing Costa Rica because it had been impossible for his Government to obtain a copy of the Spanish original, reads as follows:

The Government of the United States of America and the Government of Nicaragua, animated by the desire to strengthen their ancient and cordial friendship by means of the most sincere cooperation in any enterprises of mutual advantage and interest, and to provide with regard to the possible subsequent construction of an interoceanic canal for navigation via the San Juan River and the Great Lake of Nicaragua, or over any other route in Nicaraguan territory, whenever the Government of the United States may deem it suitable to the interests of both countries to construct such a canal; and the Government of Nicaragua wishing to facilitate by all possible means the successful preservation and operation of the Panama Canal, they have resolved to conclude a Convention for these purposes, and have consequently appointed as their Plenipotentiaries: The President of the United States, the Honorable William Jennings Bryan, Secretary of State; and the President of Nicaragua, General Emiliano Chamorro, E. E. and M. P. of Nicaragua in the United States;

Who, after exhibiting to each other their respective full powers, found to be in due and proper form, have agreed upon the following articles:

• Article I. The Government of Nicaragua cedes in perpetuity to the Government of the United States, forever free from any tax or other public charge, the rights of exclusive ownership necessary and suitable for the construction, operation, and preservation of an interoceanic canal via the San Juan River and the Great Lake of Nicaragua, or over any other route in Nicaraguan territory. The details of the conditions on which the Canal is to be constructed, managed, and maintained shall be agreed upon by both Governments whenever the Government of the United States shall notify the Government of Nicaragua of its desire or intention of constructing it.
• Article II. In order to facilitate to the United States Government the protection of the Panama Canal and the exercise of the property rights ceded to said Government by the foregoing article, and in order to facilitate to it also the adoption of any measure necessary for the purposes here foreseen, the Government of Nicaragua hereby leases to it for ninety-nine years the islands in the Caribbean Sea known as Great Corn Island and Little Corn Island; and it grants to it moreover, for a like period of ninety-nine years the right to establish, exploit, and maintain a naval base at such point in the territory of Nicaragua, on the Gulf of Fonseca, as the Government of the United States may wish to select. The United States Government shall have the option to renew for another period of ninety-nine years the lease and concessions referred to at the expiration of the respective periods, it being expressly agreed that the territory now leased and the naval base which may be established by virtue of the concession stipulated above shall be subject exclusively to the laws and sovereign authority of the United States during the period of the lease and concession, and any extension or extensions thereof.
• Article III. In consideration of the above stipulation and for the purposes provided in this Convention, as well as with a view to reducing the present debt of Nicaragua, the Government of the United States shall pay for the benefit of the Republic of Nicaragua, once the exchange of ratifications of this Convention has taken place, the sum of $3,000,000 in gold coin of the United States, of the present weight and standard, which amount shall be deposited to the order of the Nicaraguan Government in the bank, banks, or banking house which the United States Government shall determine, to be applied by Nicaragua to the payment of her debt or to other public uses looking toward the progress and prosperity of the country as may be agreed upon by the High Contracting Parties. All payments shall be effected by means of checks drawn by the Minister of Finance of the Republic of Nicaragua, and approved by the Secretary of State of the United States, or by such person as he may designate for the purpose.
• Article IV. This Convention shall be ratified by the High Contracting Parties in accordance with their respective laws, and the ratifications shall be exchanged at Washington as soon as possible.

In witness whereof the respective Plenipotentiaries have signed the present Treaty and each has affixed thereto his seal.

Done at Washington, in duplicate, in English and Spanish, on August 5, 1914.

William Jennings Bryan [seal]
Emiliano Chamorro “

X

As soon as the Congressional Record published the ratification given by the United States Senate to the Bryan-Chamorro Treaty, the Costa Rican Legation at Washington carefully studied the document and, realizing that the purport thereof was notoriously contradictory to the irrefutable rights of Costa Rica as established in the Cañas-Jérez Treaty, the Cleveland Award, and the Central American Treaty of Washington, it hastened to file in the North American Foreign Office on February 21 of the current year a respectful but energetic protest against the action of the Senate, this being the only thing that a country having no other power or defense but the law could do for the time being.

At this time, although it was no longer a question of a Government secret, Nicaragua still did not condescend to communicate anything to Costa Rica regarding the momentous problem; whereas the E. E. and M. P. of the United States in Costa Rica did see fit, pursuant to instructions from his Government, to send to the Department of Foreign Affairs of Costa Rica a courteous note in which, supposing implicitly that Costa Rica was aware of what was transpiring, he informed it that the United States Senate, on the 18th of that month had consented by 55 votes against 18 to ratify the Nicaraguan Treaty with two amendments whose texts he transcribed and a resolution of the House reading as follows:

Whereas Costa Rica, Salvador, and Honduras have protested against the ratification of the Convention referred to, in the fear and belief that it might in some manner injure actual rights of those nations; therefore, be it declared by the Senate that, in advising and consenting to the ratification of the Convention, as revised, such advice and consent are given with the understanding, which should be expressed as a part of the instrument of ratification, that nothing in said Convention was conceived to affect any actual right of the said nations.

The petition adds that at the time of receiving the communication from his excellency the American Minister, the Costa Rican Government was completely in the dark as to what the treaty in question said.

Chapter II

grounds of law

Whereas: The High Complainant Party bases his action on the following legal precedents:

I

The so-called Cañas-Jérez boundary treaty concluded between Costa Rica and Nicaragua on April 15, 1858, reads as follows in its pertinent part:

• Article 6. The Republic of Nicaragua shall exclusively have the dominion and supreme control over the waters of the San Juan River, from its source in the Lake to its mouth in the Atlantic; however, Costa Rica shall have perpetual rights of free navigation in said waters, from, the aforesaid mouth up to 3 English miles before reaching Castillo Viejo, for purposes of commerce, whether with Nicaragua or with the interior of Costa Rica, via the San Carlos or Sarapiqui Rivers, or any other route coming from the part on the bank of the San Juan which is settled as belonging to this Republic. The vessels of either country may come to indiscriminately on the banks of the river at the part where navigation is common, without any kind of taxes being charged, unless they be established by common consent of the two Governments.
• Article 8. If the contracts for canalization or transit concluded before the Nicaraguan Government had knowledge of this Convention should become void for any reason, Nicaragua agrees not to conclude any other in regard to the subjects mentioned without first hearing the opinion of the Costa Rican Government with respect to the disadvantages which the deal might involve for the two countries, provided that such opinion shall be expressed within thirty days after the request therefor is received, in case Nicaragua states that the decision is urgently necessary, and the natural rights of Costa Rica not being injured in the deal; this voice shall be a consulting one.

II

By virtue of the Esquivel-Román Convention concluded between Costa Rica and Nicaragua on December 24, 1886, both Republics submitted to the unappealable arbitral award of His Excellency the President of the United States the question which had arisen between the two aforementioned Republics regarding the validity of the Cañas-Jérez boundary treaty, article VII whereof provided as follows:

The arbitral award, whatever it be, shall be considered as a perfect treaty, binding between the Contracting Parties; it shall not admit of any appeal and shall begin to be executed thirty days after being notified to both Governments or their representatives.

III

The Cleveland Award, rendered March 22, 1888, as a result of the agreement to arbitrate contained in the Esquivel-Roman Convention, embraces the following final decisions in regard to the Cañas-Jérez or Boundary Treaty and especially as regards the two articles transcribed from said Compact:

First. The aforementioned boundary treaty, signed April 15, 1858, is valid.

Second. The Republic of Costa Rica does not have, according to the said Treaty and in conformity with the stipulations of article 6 thereof, a right to navigate the San Juan river with war vessels; however, it may do so with vessels of the fiscal service, as may be appropriate and have to do with the enjoyment, of the “objects of commerce” recognized in its favor by said article or as may be necessitated for the protection of such enjoyment.

Third. With respect to the points of doubtful interpretation communicated, as said before, by the Republic of Nicaragua, I decide as follows:

* * * * * * *

10. The Republic of Nicaragua is under obligation not to make any concessions for canal purposes across its territory without first asking the opinion of the Republic of Costa Rica, as provided by Article VIII of the Boundary Treaty of April 15, 1858. The natural rights of the Republic of Costa Rica, as referred to in said stipulation, are the rights which, by virtue of the limits fixed by said Treaty, it possesses over the soil which is recognized as belonging to it exclusively; those which it possesses in the ports of San Juan del Norte and Bahia de Salinas, and those which it also possesses in all that part of the San Juan River which lies over three English miles below Castillo Viejo (Old Castle) the measurement beginning at the outer fortifications of that Castle, as they existed in the year of 1858; and perhaps other rights which are not particularly specified here. These rights must be considered injured in all cases when the territory belonging to the Republic of Costa Rica is occupied or inundated or when anything injurious is done to Costa Rica in any of the aforementioned ports, or when there occurs such an obstruction or deviation of the San Juan River as to destroy or seriously impede the navigation thereof or of any of its branches at any point where Costa Rica has a right thereof or of any of its branches at any point where Costa Rica has a right to navigate them.

11. The Boundary Treaty of April 15, 1858, does not give to the Republic of Costa Rica the right to be a party to any concessions which Nicaragua may make for an interoceanic canal; although, in cases in which the construction of the canal involves injury to the natural rights of Costa Rica, its opinion or judgment must be, as mentioned in Article VIII of the Treaty, more than a mere consulting voice. It would appear that its consent is necessary in such cases; and that it may, therefore, exact compensation for any concessions it may be asked to grant; but it may not demand as a right that it share in the profits which the Republic of Nicaragua reserves to itself in compensation for the favors and privileges which the latter in turn may grant.

The Cañas-Jérez (or Boundary) Treaty has wholly preserved its binding force up to the present, both by virtue of the categorical decisions of the Cleveland Award which is inserted in the petition, and owing to the very nature of its stipulations, which are permanent in character, so that, without the mutual consent of the Contracting Parties, it is not possible at any time to denounce it, or consider it void, or elude the engagements contracted therein, as long as Costa Rica and Nicaragua continue to exist as free nations, especially as the validity and force of this Compact were recognized and proclaimed absolutely and without restriction to any fixed or determinate time, by the arbitral decision of one of the most honorable and highest standing-Chief Magistrates in the world.

It therefore appears unexplainable to his Government that Nicaragua should have bargained regarding a canal through her territory without regard to Costa Rica, and with the very Nation whose Chief Executive, as such, and after being designated by common accord of both Contending Parties, rendered the award which, in harmony with the Cañas-Jérez Treaty, incapacitates her from acting in this matter without the consulting and even decisive voice of the Republic of Costa Rica.

For it seems impossible to the Government which he represents that a third party could construct a navigation canal via the San Juan river without injuring, either by or in connection with the work, the contractual and natural rights of Costa Rica as fixed by the Cañas-Jérez Treaty and corroborated by the Cleveland Award.

There can be no doubt in the premises, for if the United States or a party to whom their rights are assigned adopt the San Juan river route for the canal, it is obvious that, the United States and Nicaragua having made no express reservation guaranteeing to Costa Rica the enjoyment of the advantages attributed to her by the Cañas-Jérez treaty, the enjoyment of these advantages must necessarily be subject in future to the greater or less amount of good will which the United States may exhibit in granting them.

In a word, Nicaragua has bargained with the United States or sold to them the San Juan River, with no restriction, as if she were the absolute owner thereof, including its shores and everything, and Costa Rica, which has an indisputable right to navigate freely in the greater part of these waters, and which is mistress of the major portion of the southern shore of said river, has not been taken into account.

V

Article IX of the General Treaty of Peace and Friendship concluded on December 20, 1907, among the five Republics which formerly constituted the Federal Republic of Central America, provides as follows:

The merchant vessels of the signatory countries shall be considered as national vessels in the seas, on the coasts, and in the ports of the said countries; they shall enjoy the same exemptions, liberties, and concessions as national vessels, and they shall not pay any other dues, or bear any other burdens, than those paid by and imposed upon the vessels of the country concerned.

I is evident then, says the plaintiff, that in regard to navigation any subsequent treaty or convention which Nicaragua may have signed or may sign in future, while forgetting to reserve the same privileges and advantages for the merchantman of Costa Rica, El Salvador, Guatemala, and Honduras when they ply through or anchor in her waters as she reserves for her own vessels, openly violates the aforementioned article of the Treaty of Peace and Friendship cited.

Moreover, inasmuch as the Washington Treaty and Conventions of 1907 were conceived, debated, and concluded with the friendly participation of the United States Government, these agreements have the moral guarantee of that Great Republic.

Chapter III

allegations of the high complainant party

Whereas: The attorney for the High Complainant Party, upon analyzing the grounds of fact and law on which he bases the action he has brought, appraises the present legal situation of Costa Rica and Nicaragua as follows:

From an examination and comparison of the Bryan-Chamorro Treaty with the Cañas-Jerez Treaty and with the Cleveland Award, he says, it appears that the former is in open contradiction to the others on the following points:

a. Navigation via the San Juan River.

The Cañas-Jerez Treaty, explained by the Cleveland Award, concedes to Costa Rica the perpetual right of free navigation in the waters of the San Juan River, from its mouth in the Atlantic to three English miles before Castillo Viejo, for commercial purposes, whether with Nicaragua or with the interior of Costa Rica, by any of the waterways of the latter which do or may connect with the San Juan River; it gives to Costa Rican ships the privilege of coming to, exempt from taxes of any kind, on the Nicaraguan shore of the said river at the part where the navigation is common, and it classes Costa Rican vessels of the fiscal service on a par with the merchantmen of the same country, so that they may protect the rights of that service, or serve the aforesaid commercial purposes.

As regards the San Juan River the conventional rights of Costa Rica are in some respects less than those belonging to joint sovereignty. Costa Rica can not, for instance, ply the river with war vessels, as Nicaragua may indeed do; but on the other hand those rights are greater than the rights of mere joint ownership, for Costa Rican vessels, both merchant and fiscal, have, in the zone where the navigation is common, free movement throughout the river, as to its length and breadth, and free access, exempt from dues, to any place along the Nicaraguan shore.

If the United States, under the Bryan-Chamorro Treaty, construct the interoceanic canal by way of the San Juan River, the absolute dominion over which has been granted to them by Nicaragua without any restriction whatever, it is easy to calculate, in such an event, what will become of Costa Rica’s navigation rights on the San Juan.

This being the case, Nicaragua completely forgot in concluding the Treaty that she could not make unrestricted disposal of the San Juan River, for Costa Rica also has perfectly clear rights in and to this gift of nature, these rights being of a practical importance equal perhaps to those of Nicaragua, notwithstanding the latter country tried to cancel them totally by means of an alienation which is null and void in every respect because it infringes upon the rights of a third party, Costa Rica. The sale of another’s property is void, this being an eternal axiom of law and justice, organic, it may be said, in all nations which consider themselves civilized.

Looking at the matter from another standpoint, the canal would really diminish the Costa Rican territory, which now in a way extends to the Nicaraguan shore of the San Juan River from three English miles below Castillo Viejo, in the direction of the current down to the Atlantic Ocean; and nevertheless Costa Rica was not even asked her opinion on the subject.

b. Consent of Costa Rica.

According to the Cañas-Jerez Treaty and the Cleveland Award, Costa Rica has a consulting voice which Nicaragua must consider in concluding any arrangement which she wishes to carry out in regard to the construction of a canal through her soil; but if the deal involves injury to the natural rights of Costa Rica, said voice ceases to be a consulting one and becomes decisive. That is to say, he adds if the work may cause any injury to Costa Rica, the latter must be considered as a party to the matter.

Even if there were no Cañas-Jerez Treaty or Cleveland Award, this latter conclusion would be inevitable, since it is no more than a theorem of equity; but Nicaragua went entirely astray this time; and in spite of and against the protests of Costa Rica she took the liberty to contract, by and before herself, with the United States in regard to a canal, thereby unquestionably trampling upon the rights of Costa Rica, which she is bound more than any one else to observe.

Nicaragua in this case did not even ask Costa Rica to give her consulting voice, as she was under obligation to do; and now that the Canal Convention which the United States and Nicaragua kept secret so long and so carefully known in all its details, Costa Rica can not remain still and silent, for this Compact, inasmuch as it virtually assails her rights to navigate the San Juan River and the integrity of her national territory in that direction, must not pass unnoticed by Costa Rica, which, strong in the righteousness of her cause, maintains that this Convention can not be a law to any one without her acquiescence in the clauses which gravely menace her interests.

c. Navigation in maritime waters of Nicaragua.

The Central American Treaty of Washington provides that the merchant vessels of any of the signatory nations shall have equal rights with the national vessels of the other Contracting Party when they are in the seas, on the coasts, or in the ports of the latter.

Nicaragua thus limited in favor of her sisters of the old Central American Federation, just as they in turn did for her benefit, the enjoyment of her maritime waters, coasts, and ports, for a period of ten years, which has not yet expired, and which is subject to extension indefinitely from year to year after expiring.

Consequently, Nicaragua could not validly lease to the United States any part of her coastline and waters in the Gulf of Fonseca and her Corn Islands in the Caribbean Sea, without being subject to the proviso of Article IX of the Washington Treaty; nor can she actually kill that Treaty without the consent of each of the other Contracting Parties.

There is a like obstacle to the sale of the territory which may be occupied or needed by the interoceanic canal, inasmuch as that section embraces parts of the Nicaraguan soil and waters which are affected by the Central American Treaty of Washington, for no one can transfer any more rights than what he has, or those which he does not possess.

Under Article 4 of the Cañas-Jerez Treaty, Salinas Bay on the Pacific Ocean and San Juan del Norte Bay on the Atlantic Ocean are common to Costa Rica and Nicaragua; and consequently, if the United States select the two bays mentioned as the heads or entrances to their canal, the rights of Costa Rica in those bays will have vanished on the horizon of history, unless reason and justice have prevailed in the conscience of the North American people.

In the light of the foregoing there is no doubt that, as far as a canal through her territory is concerned and in general in all that concerns navigation through her waters, Nicaragua has her sovereignty limited by the Treaties and Conventions cited, which necessarily modify her personality by subordinating it to what has been solemnly stipulated.

It is superfluous to invoke especially any principle of international law in view of the fact that, the rights of Costa Rica being based on perfect contracts signed with and by Nicaragua, these contracts are the only things that must be adhered to in settling the difference which has arisen, inasmuch as an agreement is the supreme law between the parties thereto, whether they be mere private individuals or political entities. The case under consideration is one of pure civil law, and not only the legislation of Nicaragua but also that of Costa Rica and that of all the nations in the world extol the excellency of contracts as a legal bond between the parties. When it comes to nations, an agreement between them is something more than a binding compact: Respect for what has been agreed to, and the faithful fulfillment thereof, are corner stones of national honor, and there is no defense sufficiently effectual to warrant the disregard of this rule.

Chapter IV

evidence and suit

Whereas: The attorney for the High Complainant Party presented a certified copy of the following documents to accompany the petition whose contents have been related:

a. Power of the attorney.

b. Copy of the Cañas-Jerez Treaty.

c. Copy of the Esquivel-Román Convention.

ch. Copy of the translation of the Cleveland Award.

d. Copy of the General Treaty of Peace and Friendship among the Republics of Central America.

e. Copy of the Convention giving rise to the Central American Court of Justice.

f. Copy of the protest of April 27, 1913, made by Costa Rica to Nicaragua.

g. Copy of the protest of April 17, 1913, made by Costa Rica to the United States.

h. Copy of the answer of Nicaragua, under date of June 12, 1913.

i. Copy of the interpellation of June 30, 1913, addressed by Costa Rica to Nicaragua.

j. Copy of the answer of Nicaragua under date of August 4 following.

k. Report of the Department of Foreign Affairs of Nicaragua for 1914.

l. No. 8810 of La Republica.

ll. Copy of the statement of Mr. John N. Pophan to the Committee on Foreign Affairs of the North American Senate.

m. Copy of the note of February 2, 1916, addressed by Costa Rica to the United States.

n. Copy of the Memorandum of Mr. Harry Van Dyke to the North American Senate.

ñ. No. 49 of the Congressional Record of Washington.

o. Copy of the protest of February 21, 1916, made by Costa Rica to the United States.

p. Copy of the note of the same date, from the North American Legation in this city to the Government of Costa Rica.

q. English text of the Cleveland Award.

r. Answer of the United States to the protests of Costa Rica.

After invoking Article 1 of the General Treaty of Peace and Friendship and of the Convention for the Establishment of a Central American Court of Justice, concluded December 20, 1907, by the five Republics of Central America, in order to maintain that it is incumbent upon this Court to hear the quest on raised, the attorney for the High Complainant Party, by reason of all he has set forth in his petition and because he considers diplomatic channels exhausted, asks this Court, after performing all legal formalities, to pronounce finally in this suit which he has brought against the Government of Nicaragua as follows:

First. That the Bryan-Chamorro Treaty, as referred to under point 15 of the foregoing grounds of fact, violates the rights of Costa Rica as acquired under the Cañas-Jerez Treaty, the Cleveland Award, and the Central American Treaty of Washington, owing to the following charges which he prefers against it:

a. Costa Rica was, not consulted by Nicaragua in concluding said agreement;

b. The carrying out of the Compact may deprive Costa Rica of her rights of free navigation on the San Juan River from its mouth in the Atlantic upstream to within three English miles before reaching Castillo Viejo, and prevent Costa Rican merchant or fiscal (revenue) vessels from coming to freely at any point along the northern shore of the said river within the stretch mentioned;

c. The carrying out of the Compact may also injure and diminish the Costa Rican shore of the said river within the same stretch, as well as the mouths of the rivers of Costa Rica which empty into the San Juan, and the lands adjacent to said shores and mouths;

d. The carrying out of the Compact may likewise impair the joint ownership of Costa Rica in San Juan del Norte and Salinas Bays and even render it entirely nugatory;

e. By reason of the possible injuries pointed out in paragraphs b, c, and d, the decisive voice of Costa Rica is necessary and indispensable in order to perfect the compact, and this voice was not given or even asked; and

f. The compact, as regards the lease of Nicaraguan territory to the United States as a naval base in the Gulf of Fonseca, and of the Corn Islands (Great Corn Island and Little Corn Island) which Nicaragua possesses in the Caribbean Sea, makes no reservation in favor of Costa Rica, whose merchant vessels have a right to be treated the same as national Nicaraguan vessels in all the maritime waters, coasts, and ports of Nicaragua; this omission, which was mentioned above, renders Article IX of the Central American Treaty of Washington void in fact.

Second. That the violation of the rights of Costa Rica, by virture of the charges preferred or of any one of them by itself, renders the said Bryan-Chamorro Compact void, especially as both contracting parties knew in signing it the comparative incapacity of Nicaragua to conclude it without restriction, that is, without making safe provision for the rights which Costa Rica possesses in the waters and lands constituting the subject-matter of the convention.

Third. That the correctness of the two preceding contentions renders the aforesaid Bryan-Chamorro Treaty null and void, especially with respect to Costa Rica, and this High Court hereby pronounces said Treaty void.

Finally, in an interlocutory petition he asked that the Court, in accordance with Article XVIII of the Convention creating this Court and in order to prevent conflicts and damages perhaps irreparable afterwards, prescribe the following measure pending the final decision of the case:

a. Maintenance, in regard to a canal through Nicaraguan territory and in everything in general connected with navigation in waters of that Republic, of the status quo in law which existed there with respect to Costa Rica prior to the Bryan-Chamorro Treaty, which gives rise to the present action; and

b. A resolution to communicate to the Governments of Nicaragua and the United States, by telegraph in view of the urgency of the case and reserving the right to confirm the notice afterwards by mail with all customary formalities, the fact that the present suit has been begun, and the decree covering point A above, if, as I venture to hope, my request to secure this precautionary measure is granted.

SEOND PART

Proceedings Connected with the Hearing, and Answer of the High Defendant Party

single chapter

Whereas: This Court, in an order issued May 1 of this year, acknowledged Attorney Luis Castro Ureña as a party representing the plaintiff Government; admitted the suit brought and ordered the writ prescribed by law to be sent to the Nicaraguan Government, asking the latter to answer it within a period of sixty days counting from the date of notification; ordered that a note be sent to it embodying the plea of the plaintiff, the evidence submitted, and the order issued in that connection; and decreed the precautionary measure requested, ordering finally, that the defendant Government be notified of the resolution reached, as also the other Governments signatory to the Convention creating the Court.

Whereas: The Nicaraguan Government having failed to answer the suit within the period set for it for the purpose, the Court, in an order dated August 16 last, granted it the new period of twenty days prescribed by Article XV of the Convention concerned.

Whereas: On the 25th of the same month of August the Court received the message, dated the first of the same month, in which the Department of Foreign Affairs of Nicaragua stated as follows:

By virtue of the writ issued by the Central American Court of Justice, pursuant to resolution of May 1 of this year, asking the Nicaraguan Government to file answer to the suit brought against it on March 24 last by the Government of Costa Rica in connection with the conclusion of the Chamorro-Bryan Treaty on the option to contract for the construction of an interoceanic canal, it (the Department of Foreign Affairs) has to state as follows:

Its Government was astonished at the language used in bringing the suit, for it appears only as if it were desired to bewilder the public mind with phrases uttered for effect, altering the meaning of words or misrepresenting facts.

At the very beginning of the plea we read that the Republic of Costa Rica brings the suit against Nicaragua before the Central American Court of Justice on the occasion of a Convention signed by Nicaragua with the United States for the sale of the San Juan river and other purposes. The words of the Convention are explicit, and it says absolutely nothing about a sale, for nothing was agreed upon but an option to conclude a treaty at the proper time.

It is impossible to tell yet where and when it will be suitable to construct the canal, or whether it will be through a locality bordering upon Costa Rica or one distant from her boundary.

When the studies have been made and all the circumstances have been discussed and weighed with respect to the selection, location, and construction of the waterway, then and only then will it be possible to proceed with the Canal Convention or Contract.

Meanwhile the idea of a sale of the San Juan river as attributed to the Chamorro-Bryan Convention is an assertion without foundation and besides offensive and insulting.

While all he is stating implies nothing else than a mark of courtesy toward this Court, he confining himself to the subject of this controversy, he must nevertheless express the surprise of his Government that the Central American Court of Justice should have admitted the suit when its lack of jurisdiction in the matter is so manifest, as he will proceed to demonstrate.

The Convention creating the Court, he says, is a fundamental code. Its observance can not be evaded, and it is necessary to submit to the provisions of that Convention under penalty of rendering it void. In the present case, the question must first be asked: What serves as a basis for and what gives rise to the suit? Is it the Chamorro-Weitzel Treaty or the Chamorro-Bryan Treaty? The former became ineffective, wherefore it must be eliminated from the discussion; and even if it had furnished ground for a complaint because Costa Rica alleged perchance that it infringed upon her rights (which the Nicarauguan Government does not admit), that Treaty remained in the stage of a draft without force and can not therefore be brought into question.

Nothing remains but to regard the suit as referring to the Chamorro-Bryan Treaty; but in regard to this Convention, the plaintiff admits that no steps by any Foreign Office have been taken, much less exhausted. How could it then be said, he adds, that it has been impossible to reach an agreement between the Foreign Offices of the two countries if no step has been taken (and this is an indispensable prerequisite according to Article I of the Convention) in regard to this matter to the end that, when diplomatic action has been exhausted, the suit might be admissible. This being the case, there is no use of making deductions based on conjectures. It is necessary to demonstrate the truth of the facts which are supposed, and that by means of documents or other kinds of convincing evidence (Article 17 of the regulations of the Court); it is not sufficient to say that it is a question of a similar agreement; the regulations enacted by virtue of a treaty demand proofs, not the pretexts of which a party may avail himself in order to elude the obligation imposed. These proofs do not exist and have not been adduced in order to show that the Central American Court of Justice has jurisdiction. This Court can not rise superior to the law creating it, and it has no legal mission in this matter.

Even supposing that the Chamorro-Bryan Treaty was not only similar but identical in its wording to the Chamorro-Weitzel Treaty, the latter not having had any legal existence was relegated to the category of a mere rejected draft, and so much is this the case that it may be affirmed in all truth that the effects which may arise with respect to Nicaragua and the United States on account of the Chamorro-Bryan Compact come into being from the time of the exchange of ratifications thereof. Therefore, what ought to have been and must be proved is in connection with the Chamorro-Bryan Treaty.

The Central American Court of Justice could not and can not legally disregard this legal necessity without exceeding the limits of its mission, or, what is the same, without rendering all its action absolutely void; and everything it may decide will be absolutely void if it reaches a decision while lacking jurisdiction.

His Excellency the Minister of Foreign Affairs of Nicaragua thereupon refutes the votes which four of the members of the Court cast when they admitted the suit; and he thereupon sets forth that the most relevant point in this case and which most plainly shows the lack of jurisdiction of the Central American Court of Justice to take cognizance of the suit is the request made in the petition itself, to the effect that the Court pass upon a matter which can by no means, in any of its points, be submitted to the cognizance of this Court, as if it were a matter arising from the relations between the nations signing the Convention which created the Court. “Enter,” says the plaintiff to the Central American Court of Justice, “enter upon a path which is forbidden you and which no one has made free to you; meddle where you have no business; break an agreement signed-by one who has not given you any mission to take cognizance of his affairs.” This, he says, is what is required, and nothing else, when it is demanded that a decision be rendered saying “that the violation of the rights of Costa Rica, by virtue of the charges made above or of any one of them alone, renders the said Chamorro-Bryan Compact void, especially as both Contracting Parties knew, upon signing it, the relative incapacity of Nicaragua to conclude it without restrictions, that is, without saving the rights of Costa Rica in the waters and lands affected by the Convention.

Even if the matter were regarded solely from the standpoint of the mere approval of a treaty by the Congress of Nicaragua, this approval being given by virtue of the powers conferred upon it by the Constitution, it could not be submitted to the cognizance of the Central American Court, and much less the decision as to the validity of this act emanating from a Power in exercise of the sovereignty of the Republic. As a hypothesis it might possibly be admitted that there might sometimes be a right to sue on the effects of a violation or on the injury caused or the like, but never could the legal impossibility be admitted of the annulment of sovereignty and much less of those acts in which a third High Contracting Party is involved.

After setting forth other considerations relating to this point, His Excellency the Minister of Foreign Affairs of Nicaragua concludes by stating that his

Government believes, and so declares through him, that it ought not to answer the suit of the Costa Rican Government because it can not admit, even conditionally, the competency of the Court to take cognizance thereof and decide it. He holds up the incompetency and total lack of jurisdiction of the Central American Court of Justice as the only thing to be decided at present. Not for a moment could Nicaragua take into account, otherwise than to refute them, the irritating assertions or the procedures so offensive to her sovereignty and dignity. And finally if, contrary to the requirements of the General Treaty of Peace and Friendship and of the Convention for the establishment of this Court, the latter should insist on taking cognizance of the suit, the Government of Nicaragua protests in the most solemn manner that Nicaragua has acted within her rights, and in case a decision is rendered contrary to the contention that the Central American Court of Justice lacks jurisdiction, Nicaragua declares that she will be unable to respect it.

Whereas: The Court, in view of the answer given by the Nicaraguan Government, resolved in a writ of August 31 last to acknowledge as answered the writ issued to Nicaragua asking her to answer the suit, and therefore as expired the new period of 30 days granted in the writ of the 16th of the same month of August; and that as the High Defendant Party had failed to specify in its answer any person or office in this city to receive notifications, these latter be considered as tacitly renounced according to arts. 59 and 60 of the order of procedure, and as actually made the notifications which are necessary once the period of 48 hours has expired after the measures have been pronounced; that the case had reached the decision stage and that, in order to hear the final allegations of the High Parties, a hearing was set for the 11th of the present month.

Whereas: At the hearing set the following two persons appeared in order to allege what they deemed appropriate to the interests of the High Complainant Party: Attorneys Luis Castro Ureña and José Astúa Aguilar, the latter having been appointed on the 7th of the month mentioned as representative of the Costa Rican Government and assistant of Attorney Castro Ureña. Representative Astúa Aguilar, in his allegation, confines the petitions of the High Complainant Party to the following:

The indubitable rights of Costa Rica, as established and substantiated in the Cañas-Jerez Treaty, the Cleveland Award and the General Treaty of Peace and Friendship of Washington, have been violated by the High Defendant Party in the Chamorro-Bryan Treaty, and according to the text of the conventions and arbitral award cited, the said High Defendant Party was legally disqualified from concluding the Treaty without the participation and consent of my Government.

Whereas: At a session held by this Court on the 22d of this month, the questions propounded were thoroughly discussed and votes were taken on the points of the question blank previously approved in the manner indicated in the minute prepared for the purpose, which reads thus:

Minute of vote of court.—Central American Court of Justice, San José, Costa Rica, at 10 o’clock p.m. of September 22, 1916. As the deliberations of the Court were considered terminated, so that it might proceed to pass judgment in the suit begun by the Costa Rican against the Nicaraguan Government, the votes were taken on the 14 points comprised in the question blank approved, the following being the result:

The first question, reading:

As the High Defendant Party puts forth as a “peremptory exception” the lack of jurisdiction and of competency of the Court, is it necessary to pass upon this exception, notwithstanding the stand taken in the writ of May 1 last?

Answered in the affirmative by all the Magistrates.

Second question, reading:

In the opinion of the Court, are the diplomatic instruments known as the Chamorro-Weitzel and Bryan-Chamorro (Treaties) two aspects of the same international negotiation whose ultimate abject, as far as this dispute is concerned, is the construction of an interoceanic canal?

Answered in the affirmative by Magistrates Medal, Oreamuno, Castro Ramirez, and Bocanegra, and in the negative by Magistrate Gutierréz Navas.

Third question:

Is it considered that both negotiations relating to an interoceanic canal were carried on by the Nicaraguan Government without the official knowledge of the Government of Costa Rica?

Answered in affirmative by all the Magistrates.

Fourth question:

Is it considered that the Costa Rican Government thoroughly, reasonably, and vainly tried out diplomatic channels in pursuit of an agreement?

Answered in affirmative by Magistrates Medal, Oreamuno, Castro Ramírez, and Bocanegra, and in the negative by Magistrate Gutierréz Navas.

Fifth question:

Is it proper, according to the preceding questions and conclusions, to declare this Court as having jurisdiction and competence to try to suit?

Answered affirmatively by Magistrates Medal, Oreamuno, Castro Ramírez, and Bocanegra, and negatively by Magistrate Gutiérrez Navas.

Sixth question:

Should this Court be declared competent to try and decide this dispute by reason of the subject-matter to which it relates?

Answered in affirmative by all the Magistrates, Magistrate Gutiérrez Navas explaining that he votes affirmatively as far as the matter involves differences between the Costa Rican and Nicaraguan Government.

Seventh question:

Should this Court be declared competent to try and decide this suit notwithstanding it relates to contractual interests of a nation not subject to the jurisdiction of this court?

Answered affirmatively by Magistrates Medal, Oreamuno, Castro, Ramírez, and Bocanegra, and negatively by Magistrate Gutierréz Navas.

Eighth question:

Was the Nicaraguan Government, according to Article VIII of the Cañas-Jerez Treaty, obliged to first hear the opinion of the Costa Rican Government concerning any objections there might be to the concessions embodied in the Bryan-Chamorro Treaty?

Answered affirmatively by Magistrates Medal, Oreamuno, Castro, Ramírez, and Bocanegra, and negatively by Magistrate Gutierréz Navas.

Ninth question:

In the Bryan-Chamorro Treaty, was Costa Rica entitled to lend a decisive voice concerning the canal concession via the San Juan river and the Great Lake of Nicaragua?

Answered affirmatively by Magistrates Medal, Oreamuno, Castro Ramírez, and Bocanegra, and negatively by Magistrate Gutiérrez Navas because no evidence on the subject had been furnished in the trial.

Tenth question:

In the Bryan-Chamorro Treaty, was Costa Rica entitled to give a decisive voice in the canal concession via any other point in the Nicaraguan territory, provided the rights of Costa Rica as specified under No. 10 of the Cleveland Award are not affected?

All the Magistrates answered in the negative.

Eleventh question:

Should it be considered as proven that nothing was stipulated in the Bryan-Chamorro Treaty to guard the rights of Costa Rica?

Answered affirmatively by Magistrates Medal, Oreamuno, Castro Ramírez, and Bocanegra, and negatively by Magistrate Gutiérrez Navas, who stated that in his opinion such a stipulation was unnecessary inasmuch as the rights of a third party who has not participated in the treaty or given his consent to its conclusion can not be affected; and his opinion is founded on the doctrine of the general run of writers of treatises on international law.

Twelfth question:

Should it be considered that the Bryan-Chamorro Treaty impairs the rights of free navigation of Costa Rica by the cession of a naval base in the Gulf of Fonseca and of the islands called Great Corn Island and Little Corn Island?

The Court, having already decided to revise the previous minute, accepted the proposition of Magistrate Oreamuno to substitute the following instead of the question just read:

Should it be understood that the Bryan-Chamorro Treaty violates the rights granted to Costa Rica by article 9 of the Treaty of Peace and Friendship of 1907?

Answered affirmatively by Magistrates Medal, Oreamuno, Castro Ramírez, and Bocanegra, and negatively by Magistrate Gutiérrez Navas.

Should it consequently be considered and decided that the treaty giving rise to this suit violates provisions of the Cañas-Jerez Boundary Treaty, of the Cleveland Award, and of the Treaty of Peace and Friendship signed at Washington in 1907?

Answered in the affirmative by Magistrates Medal, Oreamuno, Castro Ramírez, and Bocanegra, and in the negative by Magistrate Gutierréz Navas.

Fourteenth question.

Can this Court decide the petitions contained in points second and third of the suit?

All the Magistrates answered in the negative.

Consequently the suit was regarded as being decided as follows:

• First. The Court is declared competent to decide the suit brought.
• Second. The Court declares that the Government of Nicaragua violated, to the detriment of Costa Rica, the rights granted to the latter by the Cañas-Jerez Boundary Treaty of April 15, 1858, by the Cleveland Award of March 22, 1888, and by the Central American Treaty of Peace and Friendship of December 20, 1907.
• Third. As regards a declaration that the Bryan-Chamorro Treaty is null and void, as requested in this suit, this Court can not make any statement of any kind, because the Government of the United States of North America is not subject to the jurisdiction of this Court.

THIRD PART

Examination of the Facts and Considerations of Law

Chapter I

regarding the “peremptory exception” that the court lacks jurisdiction

Whereas: The Government of Nicaragua having, in its communication of August 1 last in answer to the copy sent it of the suit, proposed the peremptory exception or plea of lack of jurisdiction (incompetency), as also referred to in its telegraphic dispatches of April 1 and 26 and September 7 and 9 last, it is the duty of the Court to analyze the grounds of that exception and the evidence adduced before the court, as well as the provisions of law which govern the subject, in order to decide whether this Court is or not qualified to take cognizance of the dispute.

Whereas: Both from the telegraphic dispatches and from the answer to the copy transmitted to it of the suit, it appears that the Nicaraguan Government based on three grounds its denial of jurisdiction and competency of the Court, to wit:

1. In negotiating with the United States Government regarding an interoceanic canal, it did so in the exercise of its indisputable rights of sovereignty;

2. It carried on these negotiations with a Nation beyond the jurisdiction of the Court;

3. Although the Costa Rican Government took some diplomatic action when the Chamorro-Weitzel Treaty was concluded, which treaty never became effective, on the other hand it took absolutely no steps before the Nicaraguan Foreign Office in connection with the Bryan-Chamorro Treaty which gives rise to this suit, and consequently the prerequisite has not been fulfilled which the Convention creating the Court prescribes in order that the Court may acquire the right to try the case.

Whereas: As regards the first of the foregoing allegations, it should be observed that Article I of the Convention creating the Court, which Convention constitutes its fundamental code, does not exclude from the cognizance of the Court any class of differences or questions which may arise among the Central American Nations, whatever may be their origin or nature. There is nothing to limit the jurisdiction of the Court by reason of the subject-matter, and it is consequently obvious that no Central American Nation can exempt itself from its obligation to answer before this Court any complaints which the other nations signing the said convention may lodge against it, under the pretext that the injuries alleged arise from acts performed in the exercise of its own sovereignty.

Whereas: As regards the contention that the deal giving rise to this suit was concluded with a Power not coming under the jurisdiction of the Court and that consequently the Court can not decide the controversy raised by the Costa Rican Government without encroaching upon a foreign and consequently forbidden field, the Court holds that if such an allegation were sufficient to impede its functions to

effectually guarantee the rights of the Central American Republics and maintain unalterable the peace and harmony of their relations without having to resort in any case to the use of force,

which mission was intrusted to it by the Compact which originated it, a considerable number of controversies might be raised with no other possible solution but that of arms, thus rendering nugatory the most important object pursued by the nations signing the compact when they established it. The Court can, without any doubt, fulfill its functions without entering upon a forbidden field; confining itself, as is its duty, to determining the legal relations existing among the Central American Nations at variance and to declaring what is right as among them, to the absolute exclusion of the situation of law or fact which their acts may have created for them with respect to other Nations not subject to the jurisdiction of this Court.

Whereas: as far as the lack of competency of this Court is concerned, as alleged by the High Defendant Party, taking as his basis the fact that

the proof does not exist, consisting of documents or other kind of convincing evidence, that the High Complainant Party has begun, and still less that he has prosecuted and exhausted without reaching an agreement, the negotiations between Foreign Offices as required by Article 1 of the Convention creating the Court and article 17 of the regulations of the Court in order that the suit may be admitted,

The Court, in deciding the matter, has the following facts in view:

• First. It appears in the records of this case that, as stated by the High Complainant Party, the latter learned privately in April, 1913 that the Legislature of Nicaragua had secretly approved a treaty concluded, also secretly, between the Government of said Republic and the United States of America in regard to the construction of an interoceanic canal through Nicaraguan territory, and that the Government of Costa Rica communicated, in this connection, instructions to its diplomatic representatives at Managua and Washington to protest (as in fact they did according to proof among the records) against the conclusion of a Convention which it considered detrimental to the rights granted it by the treaties existing between Costa Rica and Nicaragua, as well as by the Cleveland Award of March 22, 1888.
• Second. The Government of Nicaragua, in a note of June 12, 1913, answered the protest of Costa Rica by invoking the prerogatives of its sovereignty in concluding the treaty in question and the necessity of keeping the clauses thereof secret for reasons of a diplomatic character.
• Third. The Government of Costa Rica, in view of a copy of the text of the treaty which had been published in a newspaper of this city and which was said to be the text of the same compact which gave rise to the protests mentioned, repeated its remonstrance before the Nicaraguan Foreign Office, which answered by insisting on the necessity of keeping secret its diplomatic compact with the United States of America, and stating that it was impossible for it to make any declaration regarding the contents thereof because it was not yet perfected.
• Fourth. The Government of Costa Rica having learned that, although the treaty mentioned had been rejected by the United States Senate, another canal treaty was already under consideration by that high body for its ratification; and deeming the road now closed to any direct arrangement with the Nicaraguan Foreign Office, it took before the Foreign Office of the United States and before the Senate itself, although to no avail, various steps looking toward preventing the perfecting of the treaty, which finally, received the supreme approval of the American Senate on February 18 of this year.
• Fifth. The High Complainant Party, in affirming that the necessary steps were not first taken before the Foreign Offices, relies on the circumstance that the negotiations conducted before it by the Costa Rican Foreign Office were caused by the conclusion of the Chamorro-Weitzel Treaty, which never became effective, and not by the Bryan-Chamorro Treaty, which is the one that gives rise to the filing of the suit.

The calm examination which this Court has made of all the foregoing enables it not to pass by unnoticed the error of dialectics committed by the High Defendant Party in taking as the cause of the suit what is not its cause. The Costa Rican Government did not begin its action specifically on the basis of the designation by which the compact giving rise to the suit is known, but on account of the fact that said compact relates to concessions for the construction of an interoceanic canal through Nicaraguan territory, respecting which concessions it has maintained its protests made as early as 1913.

This Court considers that it is impossible to accept as valid for the purpose of demonstrating the incompetency of the Court as alleged, the argument of the Nicaraguan Government to the effect that the Chamorro-Weitzel and Bryan-Chamorro Treaties are two distinct negotiations and that the opposition raised by Costa Rica against the former does not avail against the latter, for as both negotiations are identical in their object, which is the construction of an interoceanic canal (this being the point against which Costa Rica is really protesting), it is impossible not to consider both negotiations as two stages in the same deal, for the arguments of exclusive attributes of sovereignty and of the necessity of maintaining diplomatic secrecy behind which the Nicaraguan Foreign Office shielded itself in answering the opposition expressed by the Costa Rican Government against the first compact apply as a necessary consequence with respect to the second; and therefore it must be and is considered that the Republic of Costa Rica exhausted all the available Foreign Office negotiations for the sake of reaching an agreement with the Republic of Nicaragua with respect to the negotiations begun by the latter with the Government of the United States in order to secure the construction of an interoceanic canal; for all the more reason because, in the face of the overt declaration by the Nicaraguan Foreign Office that its negotiations were covered by the attributes of national sovereignty, it was quite natural to suppose that any further endeavor on the part of the Costa Rican Government would be in vain.

The Court furthermore holds that it cannot under any consideration admit, according to sound rules of interpretation, that the final requirement of Clause I of the Convention giving life to this Court should be understood as meaning that the High Contending Parties are obliged to insist on steps being taken which, besides being useless as regards the object of securing an agreement, are incompatible with their interests and their honor.

Whereas: The Chamorro-Weitzel and Bryan-Chamorro Treaties being held by this Court, as said before, to be two stages of one and the same diplomatic negotiation, the proof that all action has been unsuccessfully exhausted between the Foreign Offices with a view to reaching an agreement, as prescribed by the convention and the regulations of the Court in order to establish the competency of the latter and as demanded by the High Defendant Party, is furnished by the notes of the Nicaraguan Foreign Office addressed to the diplomatic representative of Costa Rica at Managua on June 12 and August 4, 1913, these being authentic documents.

Whereas: Inasmuch as the allegations on which the High Defendant Party bases the peremptory exception which he entered are rejected; and this Court being the sole authority to which the will of the nations creating it gave the right to decide, in each case, whether all possible effectual steps looking toward an amicable settlement should be regarded as having been taken, both in accordance with the precept contained in Clause XXI of the same convention, which authorizes it to judge the points of fact at issue at its free discretion, and in accordance with the privilege conferred upon it to determine its own competency by Clause XXII ibidem, in which it appears obvious that it was not the will of the nations subscribing the fundamental code of this Court that the question of its competency should be left to the arbitrary judgment of the contending parties, this Court must make the declarations which follow as a logical sequence, that is, that the High Complainant Party has fulfilled the only requirement prescribed by Article I of the aforementioned convention in order that the suit may be admitted, and that, inasmuch as the peremptory exception entered by the High Defendant Party can not be admitted, this Court is competent to decide the suit presented before it.

Chapter II

analysis of the action

Whereas: The Court has primarily studied the juridical structure of the Bryan-Chamorro Treaty with a view to inferring as a consequence its real international purport, both as regards the contractual relations between the High Signatory Parties and as regards the situation in which are placed third interested parties not connected with that mutually obligatory compact.

The Government of Nicaragua says Article 1 of that public instrument, cedes in perpetuity to the Government of the United States, forever free from any tax or other public charge, the rights of exclusive ownership necessary and suitable for the construction, operation, and preservation of an interoceanic canal by way of the San Juan River and the Great Lake of Nicaragua, or by any other route in Nicaraguan territory. The details of the terms of which the canal is to be constructed, managed, and maintained shall be agreed upon by both Governments whenever the Government of the United States shall notify the Government of Nicaragua of its desire or intention to construct it.

With variants of form and extenuations of style, but with the same fundamental idea always predominating, the unsuccessful Chamorro-Weitzel Compact, which this Court considers as the first stage in a diplomatic negotiation which culminated in the Bryan-Chamorro Treaty, embodied the following in Article I:

The Government of Nicaragua hereby grants in perpetuity to the Government of the United States the exclusive and unencumbered rights necessary and suitable for the construction, service and maintenance of an interoceanic canal by way of the San Juan river and the Great Lake of Nicaragua, or by any other route in Nicaraguan territory; and the details of the conditions under which said canal is to be constructed, served, and maintained shall be fixed by mutual understanding between the two Governments, whenever the construction of the said canal is resolved upon.

In order to logically construe their clauses, the two documents must be combined and blended together. The same idea gave life to them and they were presided over by the same intention. One calls “cession” what the other calls “grant”; the phrase “exclusive rights” was exchanged for “rights of exclusive ownership”; and “operation” took the place of “service”, besides which there were variations in the preamble and in other matters distinct from the canal stipulation. If any real innovation could be detected in this latter, it is that which leaves to the free will of the United States Government the construction of the canal, whereas the original draft agreement did not embody so explicit a prerogative, but left the details and conditions of the work to the mutual understanding of the two Governments “whenever the construction of the canal is resolved upon”, being silent as to whether the will of one or both of the contracting parties was necessary in such an event.

Having in view these historical facts, which are essential in order to determine with precision the international juridical purport of the first clause of the co-called Bryan-Chamorro Compact, we may undertake the solution of this question: Was a mere option stipulated or was a sale consummated? Doubt arises in view of the discrepancy of opinions on the part of the High Parties to the dispute. While the representatives of the Government of Costa Rica maintain that this Contract implies a perfect sale, his excellency the Minister of Foreign Affairs of Nicaragua, in communications addressed to this Court, upholds the contention that there was stipulated a mere option, destined to be perfected in the future, when the studies have been made preliminary to locating the canal and it has been agreed where and when it will be suitable to construct it.

There is no doubt but that the Bryan-Chamorro Treaty embodies a perfect sale of the property rights necessary for the construction of an interoceanic canal by way of the San Juan River or the Great Lake of Nicaragua or by any other route in Nicaraguan territory. “Ceding in perpetuity” is equivalent to an alienation, to the transfer of ownership, to the expression of the intention of delivering, with a relinquishment of all the train of prerogatives which constitute ownership; there being present moreover the animus adquirendum (intention to acquire) on the part of the purchaser, who obligated himself to pay the price of the sale. There exist, therefore, the necessary legal conditions in order to hold that the Bryan-Chamorro Treaty constitutes a sale, and besides a deed of transfer of ownership with a certain and determinate object, at least as regards the property rights (real rights) which Nicaragua alienates in the San Juan River and in the Great Lake of Nicaragua with respect to the construction of an interoceanic canal. On the contrary, the idea of an option involves a distinct proposition. There is no present alienation of ownership, but an expectancy, realizable in case the circumstances and conditions stipulated are fulfilled. And in the Bryan-Chamorro Treaty, which is onerous and commutative in character, there is a perfect obligation on the part of the Government of Nicaragua, subject merely, as regards the practical execution of the contract, to the determination of the Government of the United States. There may be, if you will, an alternative alienation; but not an option in the legal sense of the word. To sum up: By that diplomatic compact Nicaragua alienated at once and forever the rights necessary for the construction of an interoceanic canal by way of the San Juan River or the Great Lake of Nicaragua or by any other route in Nicaraguan territory, without its being possible for her to recover these rights to herself or to make them the object of further contracting.

Whereas: As regards the legal effects of the said Treaty with respect to Costa Rica, a third Republic which did not in any way contribute toward its conclusion, it is necessary to consider the situation as existing between that country and Nicaragua, in the sphere of action of territorial rights, prior to the date on which the Canal Treaty was raised to the category of a law by the High Signatory Parties, in order to judge in all their intensity the impairments of rights of which Costa Rica has complained before this Court. The Cañas-Jerez Treaty, which is perfectly valid, contains the following concrete stipulations calculated to fix the rights of both Republics in the aforesaid river:

Article 6. The Republic of Nicaragua shall have exclusively the ownership (dominion) and supreme control over the waters of the San Juan River, from its source in the lake to its mouth in the Atlantic but the Republic of Costa Rica shall have the perpetual rights of free navigation in said waters from the said mouth up to three English miles before reaching Castillo Viejo, for purposes of commerce, whether with Nicaragua or with the interior of Costa Rica, via the San Carlos or Sarapiqui rivers, or any other waterway coming from the part where the shore of the San Juan is settled as belonging to this Republic. The vessels of either country may come to indiscriminately on the shores of the river at the part where the navigation is common, without any kind of taxes being charged, unless they are established in common accord between the two Governments.

Owing to concessions granted by Nicaragua for the construction of a canal, and which were opposed by Costa Rica, the boundary disputes revived, giving rise to the Arbitration by the Honorable President Cleveland, who, on March 22, 1888, rendered his Award explaining the Cañas-Jerez Treaty, which Award possesses sufficient authority to settle all doubts pending as far as boundaries and a canal are concerned.

The Award, which maintaining the force of the Cañas-Jerez Treaty, declares that the Republic of Costa Rica has not

a right to navigate the San Juan River with war vessels; but it may do so with vessels of the fiscal service as may be appropriate and have to do with the enjoyment of the “objects of commerce “recognized as due it by said article or as may be necessitated for the protection of said enjoyment.

Both public documents, to which the High Litigating Parties assign full legal effect and perfect weight as evidence, guide this Court in laying down the following doctrines:

a. The Republic of Nicaragua has exclusively the dominion and supreme control over the San Juan River throughout the extent of its course; that is to say, it exercises rights of ownership over it and it forms a part of the national territory subject to its sovereignty.

b. That right is not absolute and suffers the restrictions which the aforesaid Treaty points out:

(1) San Juan del Norte and Salinas bays are common to the two Republics; and, consequently, at both terminal points of a possible canal, the legal principle of joint ownership endures.

(2) Costa Rica, equally with Nicaragua, is obliged to guard and defend the river in case of foreign aggression, this stipulation demonstrating to what extent, in the mind of the negotiators, the moral and material interests of both people were bound up together.

(3) Costa Rica has in the San Juan, for purposes of commerce, the permanent rights of free navigation from its mouth up to within three miles of Castillo Viejo; and she may bring her vessels to, on either shore indiscriminately, without its being permissible to charge her any dues in the part where the navigation is common. It is therefore plain that the dominion which the Republic of Nicaragua exercises over the San Juan River is not absolute or unlimited; it is necessarily restricted by the rights of free navigation attached thereto and so remarkably granted to Costa Rica, especially if we consider that such rights, exercised for fiscal and defensive purposes, are confounded in their development, in the opinion of treatise writers, with the sovereign faculties of imperium. Such a concession is equivalent to a real right of use, perpetual and inalterable, which places the Republic of Costa Rica in the full enjoyment of the ownership for practical purposes (dominio util) of a large part of the San Juan River, without prejudice to the full ownership (dominio pleno) which Nicaragua preserves as sovereign of the territory.

With respect to the decisions of the Cleveland Award, and as far as the territorial bounds are concerned the following appears evident:

a. The perfect validity of the Cañas-Jerez Treaty, to which the aforesaid bilateral agreement imparts even greater moral and legal strength, if possible.

b. The idea that the rights of navigation granted to Costa Rica on the San Juan River do not extend to war vessels, but simply to vessels for fiscal and defensive purposes; this being an interpretation which in no wise weakens the doctrine set forth regarding the practical ownership which Costa Rica has of a large part of the San Juan River; for navigation with war vessels, besides being likely to constitute a cause of uneasiness, would imply a function peculiar to territorial sovereignty.

c. The material demarkation of the boundary line between the two countries on the Atlantic side, as a means of settling the points of doubtful interpretation communicated by the Republic of Nicaragua.

With regard to the possible construction of an interoceanic canal, the Cañas-Jerez Treaty and the Cleveland Award embody the following categorical stipulations, on which this Court will base its decision, because they are absolutely pertinent to the case in point:

Article 8 of the Cañas-Jerez Treaty says:

If the contracts for canalization or transit concluded before the Government of Nicaragua had knowledge of this agreement, should become ineffective for any reason, Nicaragua agrees not to conclude another one on the said subjects without first hearing the opinion of the Costa Rican Government in regard to the objections which the two countries might have to the deal, provided that such opinion shall be expressed within 30 days after receiving the request therefor, in case the Nicaraguan Government states that the solution of the problem is urgently necessary, and if the natural rights of Costa Rica are not impaired in the deal; this voice shall be a consulting one.

Article 10 of the Cleveland Award reads thus:

The Republic of Nicaragua is obligated not to make concessions for purposes of a canal across its territory without first asking the opinion of the Republic of Costa Rica, as provided in Article VIII of the Boundary Treaty of April 15, 1858. The natural rights of the Republic of Costa Rica, as referred to in said stipulation, are the rights possessed by it, by virtue of the boundaries fixed by said Treaty, over the soil which is recognized as belonging to it exclusively; those which it possesses in the ports of San Juan del Norte and Salinas Bay; and those which it also possesses in all that part of the San Juan River which lies over three English miles below Castillo Viejo, the measurement beginning at the external fortifications of that castle, as they existed in the year 1858; and perhaps other rights which are not particularly specified here. These rights must be considered as impaired in all cases in which the territory belonging to the Republic of Costa Rica is occupied” or inundated, or in which anything injurious to Costa Rica is done in any of the aforesaid ports, or in which there occurs such an obstruction or deviation of the San Juan river as to destroy or seriously impede the navigation thereof or of any of its branches at any point where Costa Rica has a right to navigate them.

These accompanying provisions restrict the right of Nicaragua to make free disposal of her rights of ownership over the waters of the San Juan River, inasmuch as it is indispensable that the decisive opinion of Costa Rica be first heard in order to render the contract lawful, in view of the significant fact that both Republics maintain perfect rights in that river, which has been considered since olden times as being the artery calculated to give life to the projected waterway.

Whereas: The status juris existing between the Republics of Costa Rica and Nicaragua having been examined in the light of the clear and positive provisions of the Boundary Treaty and the Cleveland Award, it is necessary to declare in what way the Bryan-Chamorro Treaty affects that legal situation.

That treaty was concluded without an official notice being given to the Costa Rican Government, notwithstanding a solemn agreement imposed upon Nicaragua the undeclinable obligation to hear the opinion of the former before concluding any concession regarding the interoceanic canal. This is so stipulated in the Cañas-Jerez Treaty, the pertinent part of which was reproduced under the preceding “Whereas”; and this is confirmed in the arbitral award of President Cleveland, according to the wording of No. 10 of his declaration, which was also reproduced above.

Costa Rica ought to have been heard; and her voice might have been a consulting or a decisive one, according to the case. If the concession impairs her “natural rights,” “it appears that her consent is necessary,” says the Cleveland Award; and in case the concession does not affect such rights the voice will be a purely consulting one.

With respect to the Bryan-Chamorro Treaty, the necessary consultation was lacking. The Court unanimously settled this point, replying on the Nicaraguan Government’s own statement, it excusing this failure on the ground that it has ample power to grant this kind of concessions by itself, as a manifestation of its unrestricted sovereignty within its own limits of jurisdiction.

The Court holds the different opinion than this in passing on the matter. The canal concession granted to the Government of the United States has two aspects, viz, the alienation of the rights necessary for the construction of the interoceanic canal by way of the San Juan River, and the privilege granted to the purchaser to locate the route at any other point of the Nicaraguan territory. In the first case Costa Rica ought to have been heard and her voice would have been decisive in character, for any cession made in regard to the San Juan River involves an impairment of her “natural rights” as specified in No. 10 of the Cleveland Award.

Costa Rica has an undisputed right to the right shore of the river; to the soil situated within her jurisdictional boundaries; she has joint ownership in the ports of San Juan del Norte and Salinas Bay; the contractual right of perpetual navigation on the river, beginning at a point three miles below Castillo Viejo, comprising the broad privelege of transit and commerce, and which imposes upon Nicaragua the duty not to impede such navigation, but on the contrary the duty to keep the course of the river free; the rights of coming to on both its shores throughout the zone in which the navigation is common; and the rights pertaining to guarding and defending it “as effectively as within her power.” The Bryan-Chamorro concession, in granting the necessary rights to construct a canal via the San Juan River, forgot the legitimate rights of the High Complainant Party, for the reason that the carrying out of this work by this route necessarily implies the occupation of the Costa Rican shore or the consequent inundations of her territory as well as the use of the Costa Rican affluents, etc., and in case, as a result of the canal, the waters of the San Juan River should be diverted from their course, the result would be to render nugatory the right of Costa Rica to navigate said river and its affluents, in regard to all of which Costa Rica has the aggregate of rights which have been specified. At least this is the conviction gathered from the letter and spirit of the Boundary Treaty and the Cleveland Award, when they make every concession of this kind contingent upon the duty to hear and consider the decisive opinion of Costa Rica. The idea no doubt weighed in the mind of the illustratious negotiators of 1858 and of the Honorable Arbitrator that, when it was a question of San Juan River, it was practically impossible to construct an interoceanic waterway without affecting Costa Rican lands and waters, which, in case they served as the seat of the gigantic enterprise, required to be respected. Perhaps, also, Costa Rica was right in demanding due compensation for the use of natural features subject to her jurisdictional authority. And finally, perhaps there was the consideration of a political and moral character that, besides their material interests, the two Republics have their past, present, and future closely bound together, apart from other grounds of a higher order, because nature had joined them together in the enjoyment of so important a fluvial artery. Thus is explained the fact that article 8 of the Cañas-Jerez treaty stipulates that the opinion of the Government of Costa Rica shall relate “to the disadvantages which the deal may have for the two countries.” She is not granted the right to be heard solely on behalf of her own exclusive interests, but she is given the high prerogative of pointing out the disadvantages which the concession might offer to either country. The moral solidarity which this signifies reaffirms the legal judgment of the Court with respect to the conclusion that the natural rights of Costa Rica are affected by the alienation of the necessary rights to construct an interoceanic canal via the San Juan River. As regards the privilege granted to the United States Government to locate the canal route via any other point of the Nicaraguan territory, Costa Rica should also have been heard; but her opinion in this case would only have been advisory in character. This prerogative being granted out of deference to high political and moral interests, the opinion of Costa Rica possesses in this case only the weight of a mere consulting voice.

In order to penetrate into the spirit and scope of this right, it will be necessary to take a retrospective glance back to the time when the Cañas-Jerez Boundary Treaty was signed. A filibustering invasion had just occurred in Nicaraguan territory, and it deeply concerned Costa Rica, which contributed toward the restoration of constitutional order in the neighboring Republic.

It is natural, therefore, that, as the desire of union lasted, they should join together their destiny in so important a work, designed to mark out a new course for their future.

The diplomatic history of the two countries, as appearing from public documents, shows that in times past the Republic of Nicaragua repeatedly fulfilled the obligation of consulting Costa Rica, thus giving an opportunity for an exchange of impressions and ideas regarding canal concessions. And when, in 1868, the representative of Nicaragua signed a canal contract at Paris with Mr. Miguel Chevalier, a special mention was made to the effect that “if the Republic of Costa Rica refuses to adhere, the present Treaty shall be annulled by that fact.” This means that the interpretation of Nicaragua as regards her contractual obligations with Costa Rica, as arising from the Boundary Treaty, is the same one declared by the Cleveland Award and by the present decision of this International Central American Court. Nicaragua at that time very justly considered that there was a servitude on her territorial dominion in favor of Costa Rica, limiting, in the judgment of this Court, her contracting power with respect to interoceanic canal deals; and there is no reason for thinking that that obligation has ceased; for so far from there being any ground at present for considering the Cañas-Jerez Treaty void, its validity was confirmed in the Arbitral Award of President Cleveland to whose decision the High Parties attributed the legal weight of a perfect and obligatory treaty.

Whereas: The allegations of the Nicaraguan Foreign Office are worthy of being taken into consideration, they being to the effect that the Government which it represents, in concluding the Bryan-Chamorro Treaty, acted within its sovereign powers, contracting with regard to its own exclusive territorial domain. The absolute and general terms of that contract enable the contrary to be maintained.

In view of Clause I, the conviction arises that the alienation made affects lands and waters of the San Juan River, a fluvial territory regarding which both countries preserve rights and obligations which incapacitate them from contracting effectively one to the exclusion of the other. And even if it did not impair the natural rights of Costa Rica, the contract would lack the indispensable requisite of having received the consulting voice of that Republic as to “the disadvantages to the two countries” which the convention might offer.

According to the tenor of the provisions cited, it is impossible to consider a single case of a concession for canal purposes which does not have to be brought to the knowledge of Costa Rica always, and submitted to her decision when it impairs or affects her rights.

The argument that it will be necessary to perfect the canal contract by means of a subsequent convention between the United States and Nicaragua, whereupon the undeclinable requisite will be fulfilled of consulting Costa Rica and obtaining, if necessary, her consent, likewise finds no support in the correct concordant interpretation of the Bryan-Chamorro Treaty and the Boundary Treaty of 1858. It has already been said that in the former there was contracted a perfect alienation, a transfer in consideration of a fixed price, of the property rights necessary and suitable for the canal route, of which the Republic of the United States is made owner in perpetutity and without any limitation.

Neither do the Boundary Treaty and the decision of its authoritative interpreter favor that thesis. Those diplomatic instruments impose the obligation of consulting Costa Rica as an act prior to any canal contract, and they even fix a period for the duration of such hearing in cases when a prompt decision is necessary. Otherwise the right of Costa Rica to be heard and to give a decisive opinion would lack any efficacy. This right is to be exercised on an occasion favorable for obtaining some practical result, not only in order to guarantee its territorial and contractual rights, but in order to lend the assistance of its opinion and advice toward the common interests of the two peoples.

To wait until the site of the proposed work is located and until the “natural rights” of Costa Rica have suffered concrete and material injury before deeming it appropriate to give a hearing to the High Complainant Party would be equivalent to disowning the fact that there are acts, of nations or individuals, which involve virtual injury without material realization. Civil legislations authorize protests to be filed against acts which imply a threat against the rights of private owners, and a like principle governs in international relations, in which there are abundant cases in which a nation protests on behalf of its fundamental rights of existence and preservation against an act which involves a mere threat or danger to the development of those rights.

Whereas: The contention of the High Complainant Party in impugning the Bryan-Chamorro Treaty as detrimental to its rights is just, for these rights were compromised in an alienation which did not have its cooperation or consent, in order to compromise material and moral interests which do not belong to it exclusively, being derived from a solemn contract which marked out the course to be followed in the future in view of the prospects of canal negotiations. And it is of no avail to point out that the American Senate, in granting its ratification to the Treaty, embodied therein an additional amendment which provides:

Whereas Costa Rica, Salvador, and Honduras have protested against the ratification of said convention, in the fear or belief that it may in some way impair existing rights of said nations; therefore be it declared by the Senate that, in advising and consenting to the ratification of the convention, as revised, such advice and consent are given with the understanding, which should be expressly embodied as part of the instrument of ratification, that nothing in said convention intends to affect any existing rights of any of the said nations.

The intention is noble and of high value, and without doubt it involves a compromise on the part of the United States; but it is ineffective as regards the legal relations between the nations at variance, inasmuch as the injury inflicted upon the rights of Costa Rica was consummated and the amendment does not produce the effect of restoring matters to the legal status created by the Cañas-Jerez Treaty.

Furthermore, it appears from the Official Gazette of the Nicaraguan Government of August 25 of this year that the Nicaraguan Congress, in giving its high approval to the Bryan-Chamorro Treaty, excluded the amendment of the American Senate, thus removing the unity of the will of the two High Parties on this important point and wresting from the senatorial amendment whatever moral force it might have had.

Whereas: Article IX of the General Treaty of Peace and Friendship, signed at Washington, provides:

That the merchant vessels of the signatory countries shall be considered, in the seas, on the coasts, and in the ports of the said countries, as national vessels; they shall enjoy the same exemptions, liberties, and concessions as the latter; and they shall not pay any other dues or bear any other burdens than those paid or borne by the vessels of the country concerned.

The Bryan-Chamorro Treaty, in leasing a naval base to the United States in the Gulf of Fonseca and on the so-called Great Corn Island and Little Corn Island, in the Caribbean Sea, did not reserve in favor of the High Complainant Party the rights mentioned and which were mutually granted to each other by Nicaragua and Costa Rica, for a period of ten years, subject to extension. This failure renders those rights uncertain, inasmuch as the territories thus leased and the naval base which might be established will be exclusively subject to the laws and sovereign authority of the United States, a nation with (respect to) which Costa Rica does not maintain the same legal status (situation) in matters of navigation as with Nicaragua.

Whereas, finally: The time has arrived for examining the petitioning part of the suit, as contained in points second and third, wherein it is requested that the Bryan-Chamorro Treaty be declared void, not only owing to the violation it involves of the rights of Costa Rica, but also

because both Contracting Parties knew, when they signed it, the relative incapacity of Nicaragua to conclude (grant) it without restrictions.

The Court, upon considering this point, declared by unanimous consent of its magistrates that it ought not to render any decision thereon, for the reason that the Republic of the United States of North America is not subject to the jurisdiction of the Central American Court of Justice, an institution called upon exclusively to determine the rights as among Central American Nations which may discuss their opposing interests or air their differences before it.

To judge of the lawfulness or unlawfulness of the action of a contracting party which is not subject to the jurisdiction of the Court, or to pass upon its conduct and render a decision which shall be broad and absolute enough to comprise it when it was neither a party to the suit nor had an opportunity to be heard—such is not the mission of the Court, which, being imbued with a sense of its high duty, desires to keep within the sphere of its particular powers.

This doctrinary opinion is strengthened by the estimable opinion of the High Complainant Party, as expressed by one of its representatives, Attorney Jose Astúa Aguilar, who, in setting forth his final arguments at the public hearing of the 11th instant, summarized and epitomized the final part of the suit, for the purposes of the final decision in the following words:

The indubitable rights of Costa Rica, as established and substantiated in the Cañas-Jerez Treaty, the Cleveland Award, and the General Treaty of Peace and Friendship of Washington, have been violated by the High Defendant Party in the Bryan-Chamorro Treaty, and according to the text of the said conventions and arbitral award the High Defendant Party was legally incapacitated from concluding the treaty without the participation and consent of my Government.

The Court considered and discussed each and every one of these violations of law and decided that they existed. Being a faithful interpreter of the contractual obligations which bind the countries in dispute, and taking as its basis the universal doctrine which governs the harmonious existence of nations, it declared that the Government of the Republic of Nicaragua had inflicted on the Government of Costa Rica the injuries of which the latter complains. It can not give any broader scope to its decision, for the latter would not have any binding force on a nation foreign to the “Institutional” system created by virtue of the Washington Treaties.

Therefore: This Court of Justice, in the name of the Republics of Central America, in the exercise of the jurisdiction conferred upon it by the Washington Convention of 1907 to which it owes its existence, and in accordance with the provisions of Articles I, XIII, XXI, XXII, XXIV, and XXV of the aforementioned convention; and 6, 38, 43, 56, 76 and 81 of the code of procedure of the Court; and also in accordance with the conclusions voted at the session of the 22d of the present month, renders, by a majority of four votes against that of Magistrate Gutiérrez Navas (who states the reasons of his vote separately), the following

award:

• First. The peremptory exception interposed by the High Defendant Party is declared inadmissable, and this Court is consequently declared competent to decide the suit brought by the Government of Costa Rica against the Government of the Republic of Nicaragua.
• Second. It is declared that the Government of Nicaragua has violated, to the detriment of Costa Rica, the rights granted to the latter by the Cañas-Jerez Boundary Treaty of April 15, 1858; the Cleveland Award of March 22, 1888; and the Central American Treaty of Peace and Friendship of December 20, 1907.
• Third. As regards the Bryan-Chamorro Treaty being void, as claimed in this suit, this Court can not make any declaration whatever.

Let this award be made known to the High Interested Parties and to the other Governments of Central America.

Angel M. Bocanegra

M. Castro R.

Saturnino Medal

Daniel Gutiérrez

Nicolas Oreamuno

Manuel Echeverria

Secretary

3. For. Rel. 1888, p. 456 et seq.
2. Address of President Wilson before the Second Pan American Scientific Congress at Washington, January 7, 1916.