Papers Relating to the Foreign Relations of the United States, With the Address of the President to Congress December 5, 1916
File No. 817.812/283
Minister Long to the Secretary of State
San Salvador, December 2, 1916.
Sir: I have the honor to enclose copies of the originals and translations of the protest which Honduras forwarded to Salvador under date of September 30, 1916, and of the Salvadorian reply dated October 7, 1916, which Mr. Manuel Delgado, special representative of President Melendez of Salvador recently delivered to the former Government.
I have [etc.]
The Minister of Foreign Affairs of Honduras to the Minister of Foreign Affairs of Salvador
Tegucigalpa, September 30, 1916.
Mr. Minister:—The Secretary of the Court of Justice of Central America, in the note of the 6th of the present month, has communicated to my Government the resolution of that tribunal of the sixth of the same month, In which it admits the demand started by the Salvadorian Government against Nicaragua for the making of a treaty between the latter and the United States, August 5, 1914, known as the Chamorro-Bryan Treaty, and which Salvador considers as injurious to her rights for the reasons that she states in the petition which was presented to the tribunal on the 28 of August last, the document which was published by the Salvadorian Legation in Costa Rica.
Among the principles of the demand, your excellency’s Government holds that it has codomination over all of the Gulf of Fonseca, saying that—
Since the XVI century at which time this Gulf was discovered by the Spaniards who conquered Central America, naming it the Gulf of Fonseca, in honor of the President of the Council of the Indies, under whose charge was the governing of these lands, and who ruled them for the Crown of Castile, the mother country, whose rights of exclusive domination was never placed in doubt; and when Central America was emancipated, the above domination passed to the Federal Government which was made up of the five States,
and that—
The exclusive domination in these waters, during the rule of Spain, and the dominion of the five federated States of Central America after the emancipation; and stronger still the exclusive dominion of the three States, Salvador, Honduras and Nicaragua, who, on account of their geographical situation around the Gulf, makes it evident, among other things, that they have exclusive dominion, and no other nations have even pretended to use these waters for objects of fishing or other uses.
The demand of that Government states further that—
It is of no importance that Honduras and Nicaragua in consequence of a convention for the marking of Boundaries, made in October 7th, 1894, placing in 1900 a dividing line in the Gulf of Fonseca; for this act was consummated without the consultation of Salvador, who is indispensable in order to give any such pact validity and effectiveness, for it was a pact of covering common property, not only of Honduras and Nicaragua, but also of that sovereign State,
it further states—
It cannot produce in any manner a restriction of the rights of codomination and co-sovereignty that Salvador has always had in the Gulf of Fonseca since the Federation of [Page 891] Central America was dissolved to the present time, for she was not a party to the convention, and did not take part in any form in the making of the above-mentioned boundaries.
Also it states—
Fonseca Gulf, on account of the manner in which domination has been exercised over its waters since the XVI century, belongs to the category of waters called “Historical Bays “which should be considered as belonging; to the exclusive domination of the States who own its shores, and furthermore Fonseca presents the peculiar condition, in that its entrance at the Islands of Meanguera and Meanguerita, on a straight line from the Point of Chiquirin, on the mainland of Salvador, to Point Rosario on the NE. part of the peninsula which forms the promontory of Cosiguina, in Nicaragua, is not wide enough to be considered in international law as “closed or territorial.”
The Government of Honduras will not enter into the discussion which your excellency’s Government has started in its demand against Nicaragua regarding the rights in Fonseca Bay, nor is it presumed that the Court of Justice of Central America can decree a point affecting the Government of Honduras in a case in which this Government has no intervention.
The object of this note, Excellent Sir, is to protest in the name and with the expressed wish of my Government, against the pretended right of co-domination which is alleged by the Government of your excellency in its demand against the Government of Nicaragua, and to declare, as my Government has already formally declared, that she does not recognize and has not recognized, any state of codomination with Salvador, nor with any other Republic, in the waters of Fonseca Bay which correspond to Honduras.
And furthermore, my Government declares that the boundary made in the year nineteen hundred in the waters of the above waters by the Mixed Commission of Boundaries of Nicaragua and Honduras, to determine clearly the boundaries of their maritime frontiers, has from the moment that it was made been effective and valid, in the same manner as is the other of the boundary which was fixed by the above commission on land between the two Republics, and that at no time since the fixing of the above boundary has the Government of El Salvador ever given any objection to the validity of the same.
The circumstances of not having made a boundary line between Honduras and Salvador in this Bay does not constitute a codomination and cosovereignty in the waters of Fonseca.
The text of Article 13 of the Law of Salvador on navigation and waters states:—
The territorial waters of the Republic are divided into five maritime departments, in the following manner:
1. Maritime Department of La Union, composing the Bay of Conchagua, that part of the Gulf of Fonseca in which are situated the Salvadorian Islands, and the territorial waters as far as the parallel of the eastern mouth of the San Miguel—
thus showing that the Government of your excellency never considered that any community existed with Honduras in the above waters.
The rights which Salvador thinks she has over part of the Gulf of Fonseca or over some of its islands, is not defined nor recognized by Honduras. But the Government of Honduras judges that, notwithstanding the indetermination of the boundary line, the State of El Salvador, which shows her proper limits in her first Constitution after the independence, cannot extend the limits further than is justified in the Constitutions of the two Republics.
In having the honor to communicate to your excellency the present note, I wish to express the deep feeling which my Government experiences at the harmony which has always existed between Honduras and Salvador.
I pray that your excellency will notify your Government Of my Government’s note which will also be communicated to the Court of Justice of Central America, and I am pleased to reiterate [etc.].
The Minister of Foreign Affairs of Salvador to the Minister of Foreign Affairs of Honduras
San Salvador, October 7, 1916.
Mr. Minister: I have the honor to refer to the note of your excellency, dated September 30 last and to the protest which, in the name of the illustrious Government of Honduras, your excellency formulates in that note, regarding [Page 892] the protest which my Government has made against the Government of Nicaragua over the treaty known as the Bryan-Chamorro Treaty.
The arguments of which it treats, are relative to the codomination which Salvador considers that she has in the waters of the Gulf of Fonseca in community with Honduras and Nicaragua, and the reasons for her opposition to the giving of any portion or section of these waters for the establishing of a naval base which a foreign nation has the intention of establishing.
The Government of your excellency does not admit this codomination, and supports its contention in this respect, by the fact that it has made a boundary line marking its jurisdiction with Nicaragua in 1900, by virtue of the Treaty of Boundaries celebrated in 1894.
My Government has no objection as to the validity of the above-mentioned treaty, nor to the marking of the boundaries fixing the jurisdictions, between Honduras and Nicaragua, on the waters of the Gulf of Fonseca, in so far as it affects only the jurisdictions of those two Republics. For this reason we have had no reason for opposing any of these acts up until now. But it is not admissible, in any way, that our silence can be interpreted as a renunciation of our rights of coownership in an inheritance which, from time immemorial we have possessed and possess in this form, in union with Honduras and Nicaragua; and neither does that treaty and act of partition of this inheritance produce the effect of nullifying the rights of codomination which belong to Salvador in the waters of that Gulf, nor to impede the opposition to the stipulations which do not recognize these rights and which place in peril the national security. A pretension which will violate the principle of equality and justice which does not permit the acts of third parties to suffer because they have not had a word in the making of such treaties.
Your excellency states that Article 13, number 1 of the law of navigation and sea renders null and void the right of codomination which Salvador claims in the Gulf of Fonseca, because the divisions cited in this law show that there is no codomination.
The law states thus:—
Art. 13. The territorial waters of the Republic are divided in five maritime departments, in the following manner:
- 1.
- The Department of La Union is composed of the Bay of Conchagua, that part of the Gulf of Fonseca in which are the Salvadorian Islands, and the territorial sea to the parallel with the mouth of the River San Miguel.
- 2.
- Maritime Department of El Triunfo, is composed of the sea (territorial) between the parallel to the mouth of the River San Miguel and parallel to the mouth of the River Lempa.
- 3.
- Maritime Department of La Concordia.
- 4.
- Maritime Department of La Libertad.
- 5.
- Maritime Department of Acajutla.
This regulation or law has no other object than to determine the respective jurisdictions between the commandants of the Ports of La Union, El Triunfo, La Concordia, and Acajutla, for the purposes of political administration. Of a purely domestic character, it is, nevertheless, consonant with the axiom of Bynkerschoek, which is cited in the complaint against that Government. Thus in the reference to the Gulf of Fonseca it is shown that the part occupied by the Salvadorian Islands forms part of the territory of the nation, which agrees with that axiom, since the intermediate waters between the islands and the main land and the islands nearest to it are under the actual control of Salvador, on account of the small width of the channels formed by them. Furthermore, that provision also agrees with the doctrine of the Law of Nations, accepted by the writers, according to which the islands, reefs and sand banks near the main land of a nation are considered to be an extension of the territory of that nation; which doctrine stands in close connection with that supported by Bynkerschoek.
As above explained, the object of Article 13 of the law on ocean navigation was to fix the limits of a jurisdiction between the maritime commanders and, while the reference to the Gulf of Fonseca in its No. 1 further shows clearly that in the mind of the lawmaker that part of the Gulf occupied by the Salvadorian Islands must be regarded as an extension of the territory of Salvador, it could not imply that Salvador had relinquished the exercise of territorial rights which the principles of international law grant it over the adjacent sea.
On the other hand, the same Salvadorian law clearly and positively so determines in Articles 2 and 16, which appear in the copy of Annex N in the complaint against the Government of Nicaragua, which your excellency declares [Page 893] you have before you in the publication issued by our Legation in Costa Rica.
Article 2 establishes that the adjacent sea, as far out as a marine league is national territory; but that the police rights for matters concerning the safety of the country and the enforcement of the revenue laws extends as far as four marine leagues measured from low water mark.
Article 16 states that each maritime commandant has the right of policing which belongs to the nation over the four marine leagues mentioned in Article 2 within the limits of the parallels which mark their respective departments, that is to say, that the Commandant of La Union, without passing the parallel to the mouth of the River San Miguel, which also marks the jurisdiction of the maritime department of El Triunfo (on its south) is charged with the duty of making effective the authority of the territorial jurisdiction which belongs to Salvador, over the sea to a distance of four marine leagues (twelve miles) which in the Gulf of Fonseca is measured from the furthest limit of Salvadorian territory into the waters of the Gulf.
Consequently, the regulations of the law cannot logically be construed by your excellency as you stated in your note, with regard to the protest made by my Government.
Finally, the Government of Salvador cannot admit in any manner, any doubt as to her rights of codomination which she has always possessed and exercised in the waters of the Gulf, rights which she could only renounce by a treaty of partition legally made, by the three States who are coowners.
In replying to the note of your excellency, I wish to state with what pain your note has caused my Government in protesting to its just demand which it has placed before the Court of Justice of Central America regarding the codomination which Salvador, Honduras, and Nicaragua has in the waters of the Gulf of Fonseca.
This pain is all the more greater when it is taken into consideration that the Salvadorian people and the Honduranian people, as your excellency has so well expressed it, have always maintained the most friendly relations, relations of fraternity, inspired by the most sincere cordiality and which have always kept the two sister nations in harmony.
I reiterate [etc.].
The Central American Court of Justice to the Governments of Costa Rica, El Salvador, Honduras and Guatemala
San José, Costa Rica, November 9, 1916.
[Translation. Handed to the Secretary of State by the Minister of Costa Rica December 7, 1916.]
Mr. Minister: I have the honor to inform your excellency that the office in my charge, in obedience to instructions from the Court, has this day addressed to the Governments of Guatemala, Honduras and El Salvador the following communication:
Central American Court of Justice,
San José, C. R., November 9, 1916.
Mr. Minister: The office under my charge, in fulfillment of the duty imposed thereon by Article 56 of the Ordinance of Procedure of the Central American Court of Justice, hereby, in due course, communicates to your excellency’s Government and to the other Governments of Central America the decision rendered on the 30th of September last by the Court on the complaint brought by the Government of the Republic of Costa Rica against the Government of the Republic of Nicaragua.
On the 17th of October last this office, in obedience to instructions, transmitted telegraphically, by way of a report, to the Governments of Costa Rica, Guatemala, Honduras and El Salvador the telegraphic despatch addressed to the Court by the Department of Foreign Relations of Nicaragua, in which, after acknowledging the notification of the decision referred to, it protests against the decision and declares that its Government is not disposed to abide by it
[Page 894]On the same date, and in the same form, this office transmitted to those same Governments copies of the message which, in the name of the Court, it addressed to the Government of Nicaragua, making the observations suggested by Article 14 of the Rules of the Court; and I have now the honor to hand your excellency copy of the documents referred to as well as the final reply of the Nicaraguan Government wherein it reiterates its resolution not to abide by the decision of the Court.
The Court, your excellency, must this day fulfil its last duty in this case in compliance with the provisions prescribed in the final part of the Ordinance of Procedures, and for the purposes set forth in Article 14 of the organic convention; and, as the Nicaraguan Foreign Office states in its final message the reasons on which it bases its action in rejecting the decision rendered, the Court has instructed me to present for the consideration of your excellency’s illustrious Government a brief analysis of the arguments whereby the decision is impugned, which arguments in fact constitute grave charges against the Court, imputing, as they do, violations of its organic law, breaches of international law, contradictions in its decisions and even inferred affronts to the Republic of Nicaragua.
A single reading of the Central American pacts subscribed at Washington, of the Cañas-Jerez Treaty and the Cleveland Award, on which instruments the Court relied for support in reaching its decision, will suffice to discredit the imputations and charges referred to; nevertheless the Court must not retreat before the moral obligation resting upon it to insist still more, if this be possible, upon the justice of its acts in order that its honor and prestige may be held stainless.
The Government of Nicaragua says that
it does not, and cannot, admit the unrestricted power that the Court arrogates to itself to take cognizance of all the differences that may arise between the Central American States, because nothing that affects the sovereignty and integrity of the five Republics is involved in the treaty stipulations; because no nation on earth would submit to the arbitrament of strangers its security and preservation; and because the powers actually conferred upon the Court do not extend to controversies that arose prior to the conventions.
In such round declarations—patently at variance with the clear, precise and positive terms prescribed in the very first articles of the convention that instituted the Court and the General Treaty of Peace and Amity signed at Washington on the 20th of December, 1907—does the Nicaraguan Government seek to demonstrate that the litigation instituted by Costa Rica is outside the jurisdiction and competence of the Court—a pretense maintained by that Government before even the complaint was admitted.
It must be evident, then, that if this strange reasoning were to find support among the other Governments signatory to the Treaties of Washington, then at once, and perhaps forever, would be effaced an institution that now stands as the worthiest conquest of civilization, one of which the Central American States have been justly boastful and for which they have well merited the applause and admiration of the whole world, and this commendation has been expressed by the most eminent statesmen of Europe and the Americas who have all agreed that the form of arbitration adopted by those countries, in creating the Central American Court of Justice, is obligatory, absolute and unrestricted with respect to the nature and origin of the questions that may be submitted to that Court, and conditioned solely on the fact that in each case the respective Foreign Offices have been unable to reach a settlement.
Don Francisco José Urrutia, ex-Minister of Foreign Relations of Colombia, commenting in his Department Bulletin No. 7, on the Central American Pacts of 1907, said:
The Central American Court of Justice, in the form established by the pacts, we are studying, will give reality to an ideal that has not been reached by the three Pan American Conferences or even The Hague Conference. To that tribunal are submitted, without restriction, all controversies or questions that may arise between the contracting parties, whatever their nature and whatever their origin. This is international arbitration in its amplest form, arbitration such as could not be established in Mexico in 1902, nor in Rio de Janeiro in 1902, nor in Rio de Janeiro in 1906, arbitration without the restrictions and reservations that characterized The Hague Convention for the pacific settlement of international conflicts.
The above authoritative opinion is the same as that which has been maintained on all occasions by the Central American statesmen who have heaped eulogies on the Court in the belief that its creation signified a giant’s stride forward in the evolution of our institutions and not a weak compromise in primitive ideas heretofore dominant in arbitration propaganda. And even if Article I of the Convention above cited were not so clear and conclusive, but [Page 895] still required interpretation, resort could be had to the illuminating report made to the Nicaraguan Government by its delegates to the Conference of Washington, in which the article referred to is commented on in the following language:
Article I fixes the permanent character of the Court of Justice and the principal object of its jurisdiction, which is to take cognizance of all questions that arise between the Central American Governments without a single exception.
And there is also the telegraphic report rendered to his Government by his excellency the Ambassador of the United States of Mexico. Mr. Creel, who took part in the Conferences of Washington, as the delegate of his country, in the character of mediator and who said in that report:
The Permanent Court of Justice will decide all international questions, without exception, and will be the first tribunal possessing that highest of jurisdictions to be organized on earth. I congratulate the President and Minister of Foreign Relations for their friendly mediation in this great work of peace and concord.
And worthy of note also, because demonstrating how far opinion has gone in holding as indisputable the unrestricted jurisdiction of the Central American Court of Justice, is the fact that the Justice from Nicaragua himself, notwithstanding his negative vote on nearly all the points presented in the questionary, in his answer to the sixth question—
Is it the duty of the Court to declare its competence to take cognizance of and decide this cause on the merits?
stated that he voted affirmatively—
only in so far as that the merits relate to differences between the Government of Costa Rica and the Government of Nicaragua.
It will be seen, then, that no one has been of the opinion that customary limitations in the conclusion of international arbitral conventions were retained in negotiating these memorable conventions—pacts that consecrated obligatory judicial arbitration in form more ample and unrestricted than any heretofore adopted in the history of the world.
How, therefore, can the Government of Nicaragua demand the exclusion from the cognizance of the Court of questions that affect sovereignty or that arise on a state of facts antedating the conclusion of the Treaties of Washington? The Treaties of Washington are not impressed with those limitations either expressly or tacitly; and hence they cannot be justly relied on in support of statements manifestly contrary to the clear, precise and conclusive text of those pacts.
The Government of Nicaragua, with no basis in justice, affirms that the Court
has reviewed or attempted to review an arbitral award accepted in its entirety by the parties, thus seeking to revive questions that have stood definitively decided for a long time past. This is apparent in the last decision, in which it is sought to revive the old question of boundaries, by interpreting the Cleveland Award in order to establish contrarily to the clear text of that award, a coproprietorship or coownership by the two countries over Salinas and San Juan del Norte Bays that never existed.
It must be remembered right here, however, that the complaint of which the Court took cognizance had for its sole ground the conclusion by the Nicaraguan Government of a treaty for an interoceanic canal across its territory without first consulting the Government of Costa Rica, and that treaty was signed in 1915, that is eight years after the conclusion of the Treaties of Washington. If in the general consideration of that ground of complaint, and in fulfillment of its unavoidable duty, the Court inquired into the spirit and scope of the Cañas-Jerez Treaty which, incidentally, was held to be valid in all its parts and made clear by the Cleveland Award—both being documents invoked by the complainant as proof of the rights set up by that party—such action signifies nothing more than the exercise of a judicial function properly pertaining to the Court; for, those documents being, as they are, impressed with the character of laws of the land regulative of the juridical relations between Costa Rica and Nicaragua, it was the Court’s unavoidable duty to rely on them justly to the point at issue.
Thus, in affirming the existence of the juridical fact relating to the community of interest of the high parties litigant in Salinas and San Juan del Norte bays, nothing new was declared, nor any fact established that was contrary to the terms of the documents cited; what the Court did was to apply the clear and positive letter of the Cañas-Jerez Treaty, Article 4 of which reads:
The Bay of San Juan del Norte and the Bay of Salinas shall be common to the two Republics as also the advantages and the obligation to join in their defense.
When in its decision the Court stated the legal relation existing between Costa Rica and Nicaragua growing out of the article above quoted, and framed its statement in doctrinary form in order to deduce its conclusions, it did not review any award with the purpose of reviving boundary questions already decided, nor did it make any declaration contrary to the arbitral award referred to; the Court merely proceeded in the usual course of ordinary judges who neither make or revise the laws, but who interpret them in order to apply them to concrete cases brought before them.
If on this point—which is essentially of secondary importance and does not go to the roots of the cause—the Government of Nicaragua maintains a different criterion, it should have presented its allegations and proofs, for it has had abundant time and opportunity in which to do so. But having failed to present its case, its censures upon the Court’s action, which gives full faith and credit to the positive stipulations of two international agreements that are acknowledged by both parties litigant to have perfect legal existence, must be held to be wholly without effect.
With respect to the argument that, concerning the question decided, the Costa Rican Government did not fulfill, previously to the presentation of its complaint, the essential requirement to take steps through diplomatic channels looking to a settlement of the dispute, and that, therefore, the Court did not acquire the necessary competency to take jurisdiction of the case, the Court has demonstrated with elaborate reasoning in its decision that the Nicaraguan Government, in setting up the omission above mentioned, relied solely on an error in wording. And in demonstrating in its decision, that the requirement cited had in fact been fulfilled, the Court acted upon facts thoroughly well substantiated and not arbitrarily and capriciously as affirmed by the Government of Nicaragua; the Court’s judgment on the facts so proved was reached through a course of rigorously logical and systematic consideration thereof, wherein they were given the due weight and careful thought called for in Article XXI of its organic convention, which article provided that
in deciding points of fact that may be raised before it, the Central American Court of Justice shall be governed by its free judgment.
There are, however, certain other considerations of special importance on this point that should be discussed. The Nicaraguan Government has claimed that the Government of Costa Rica should have again initiated steps through diplomatic channels, before having presented its complaint to the Court, in view of the fact that the steps theretofore taken, in 1913 by that Government related to the Chamorro-Weitzel treaty that never went into effect. The Nicaragua Government thus evades the positive and indisputable fact that that pact and the one that gave rise to the complaint are at bottom one and the same agreement and as such, are impugned by Costa Rica on the authority of the Cañas-Jerez treaty. Nicaragua also forgets that the abandonment of the Chamorro-Weitzel treaty was not due to Nicaragua’s lending herself to an effort towards the settlement through diplomatic channels undertaken in that year by Costa Rica; and she dodges the fact that she herself closed the road to any subsequent diplomatic settlement by her positive declarations that she could not reveal the terms of the canal treaty and that in negotiating the earlier pact she was proceeding in the exercise of her unquestionable sovereignty.
And persisting in the same reserve respecting the negotiation and terms of the Bryan-Chamorro treaty to such point that the Costa Rican Government had no notice of it until it was wholly impossible to prevent its definitive consummation, any further efforts towards direct settlement would have been useless, besides being unbecoming on the part of a Republic that had been so emphatically and positively repulsed in the efforts it put forth to be recognized as an interested party in the transaction.
That being the case, and the Costa Rican Government not having ceased to oppose the conclusion of the canal treaty in quarters where its efforts had not been repulsed, it is illogical to claim—as the Nicaraguan Government has claimed—that the Costa Rican Government, by not pursuing its steps towards direct settlement, initiated in 1913, must be held to have withdrawn its opposition.
The Court, which, according to the convention that gave it life, represents the conscience of Central America, believes that it has acted in strict justice in holding concretely that the negotiations of 1913 and 1915 entered into by Nicaragua respecting an interoceanic canal (one broken off and the other consummated) are two steps of a single transaction that is impugned by Costa Rica, and that, consequently, the diplomatic moves towards a settlement initiated [Page 897] in 1913, for the breaking off of which she was in no Way to blame, had the desired effect, with respect to the Bryan-Chamorro treaty, in giving to the Court the competency indispensable to the cognizance of the cause when the controversy was brought before it.
The contradiction which the Nicaraguan Foreign Office believes to have found between the act of May 1 that admitted the complaint of Costa Rica and that of September 6 that admitted the complaint of El Salvador, is only seeming contradiction, for the Foreign Office, for the purpose of demonstrating its assertion, reproduces only the citation of an interpretation made by the Court in 1908 in deciding the complaint of Hunduras, and omits the reasons assigned in the preamble to which it pertains.
The citation had for its object to show that, according to the precedent adopted by the Court in 1908, and according to provisions of the Rules of Court and Ordinance of Procedure that interpret and make applicable Article I of the Convention, the Court must
judge in each case that comes before it whether the complainant state has or has not taken steps through diplomatic channels, since it is not possible to apply a fixed and inflexible criterion in all classes of matters.
The citation was also intended to show that Article I of the Convention does not establish the unalterable condition that steps of the kind mentioned must be undertaken and exhausted; but this must not be taken as indicating that the Court holds in the case of Costa Rica’s complaint that such steps were not necessary, for the case there presented was not one of “war declared or in operation,” such as provided for in Article 17 of the Rules and 6 of the Ordinance.
The principal ground on which rested the admission of Costa Rica’s complaint, according to the act of May 1, is to be found in the preamble, paragraph 4, which reads as follows:
That with reference to the requirement that the State must resort to diplomatic parleys or discussions, as prerequisites to judicial action, to the end that an amicable settlement may be reached, the Court finds, from the facts so far presented, that the requirement has been fulfilled,
And the Court thereupon proceeded forthwith to set forth its reasons for that declaration.
The act of September 6 that admitted the complaint of El Salvador, says in substance:
That Clause I of the Convention fixes the jurisdiction and competency of the Court with no other limitation than that the Foreign Offices of the Governments in controversy must have failed to reach a settlement; and that from the clear and positive reasons set forth in the conclusion of the Nicaraguan Foreign Office’s answer to that of El Salvador, it deduces the fact that such settlement was impossible; therefore there can be no doubt that the complaint lies within the jurisdiction and competency of the Court.
What, then, is the basis for the contradiction imputed to the Court by the Nicaraguan Foreign Office when it says that
the Court under the pretext of that pretended unrestricted power, has not hesitated to make two diametrically opposite interpretations of Article I of the Convention referred to, in order to decide always against Nicaragua in cases of the same nature?
Furthermore, Article XXII of the Convention, so frequently mentioned here, confers on the Court the power to determine its own competency; and that power like a wall erected by the law about the parties that appear before the Court to prevent them from withdrawing themselves from the effects of its decisions—cannot be disputed by them, nor can they refuse to respect it without in fact being guilty of a default in the obligations contracted in the above-mentioned international pact.
The Nicaraguan delegates to the Conference of Washington, commenting on Article XXII above cited, make the following statements in the report to which reference has hereinbefore been made:
It might happen that one or more of the contending parties, not wishing to submit to the judgment of the Court a matter comprehended in the convention or not wishing to comply with the decision that might be rendered, would object to the competency of the tribunal to take cognizance of that matter, or would allege extra limitations of power. This contingency is made impossible by Article XXII which gives the Court the power to decide as to its own competency, to interpret treaties and conventions pertinent to the matter in controversy and to apply the principles of international law. So that, when the Court shall have declared its competency the obligatory character of its decisions cannot be denied.
To claim that the Court, in rendering its decision in strict conformity with existing treaties and the principles of international law, has affronted Nicaragua [Page 898] is to make a statement that cannot be passed over unnoticed. That country, as is the case with the rest of Central America, constitutes a moral entity that impressed itself upon the respect and sympathy of this Court, the very life of which rests precisely in the noble hope that the countries that brought about its institution may live always in peace and harmony to the end that the ties of confraternity that unite them may be drawn tighter and that it may be possible in the future to see the five flags symbolizing our country and sovereignty combined in a single standard, as they were in an earlier day.
Any effort that might tend to widen the differences between those peoples would be far removed from a labor of patriotism. The peoples of Costa Rica and Nicaragua have not engaged in any controversy. It is merely that their respective Governments have set up a legal question which the Court is called upon to solve in honorable and just judgment. The vehemence, then, of the language used by his excellency the Minister of Foreign Relations of Nicaragua does not comport with his expressed aspirations for peace and concord, much less with the unavoidable duty that is imposed upon that Government to respect and abide by the decision of this Central American Court to which has been entrusted without reservation of any kind a high function of resolving the differences that arise with brother governments.
That decision must be complied with. The honor of Central America and the prestige of her institutions demand it. If compliance is withheld, this singular and unprecedented contumacy of the Nicaragua Government must lie as a pall upon the faith and confidence that have been heretofore the inspiration of our public treaties. The justices of this Court are at peace in their own minds. They have fulfilled their duty and now trust that your excellency will acknowledge the rectitude of their act; and as a recompense for having lost the confidence of his excellency the Nicaraguan Minister of Foreign Relations, they hope to continue in the enjoyment of the Central American national esteem.
The Court is loath to close this brief statement without an expression of regret that the Government of Nicaragua should have made the charge—wholly destitute of truth though it be—that it urged in vain upon the Court the fulfillment of its international obligations born of the Treaties of Washington; for this office has never received a complaint of any kind relating “to the undue aggressions or intrusions of those who have benefited by its policy.” It is interesting to note that the Government of Nicaragua has never brought before the Court any action based upon the violations to which it alludes and as to which the Court has never had the remotest notice. It would seem that the other Central American Governments are called, upon to defend themselves against that charge; the Court, on its part, is wholly without the means to pass upon it outside of its judicial capacity.
The Court, Mr. Minister, rests in the hope that its austere conduct, in the face of such insensate attacks, will be justly judged by your illustrious Government, called upon, as it is, to lend the moral support bespoken on behalf of this tribunal by Article XXV of the Convention.
Assuring [etc.]
Manuel Echeverria
Availing myself of this opportunity [etc.]
Secretary