File No. 817.812/307

Minister Jefferson to the Secretary of State

No. 355

Sir: I have the honor to enclose herewith for the information of the Department copy and translation of the decision of the Central American Court of Justice in the case of the Government of El Salvador against the Government of Nicaragua relative to the concession [Page 1101]of a naval base in the Gulf of Fonseca by the Nicaraguan Government in the Bryan-Chamorro Treaty.

I have [etc.]

Benjamin L. Jefferson
[Inclosure—Translation]

Decision of the Central American Court of Justice

Central American Court of Justice, San José, Costa Rica, at five on the afternoon of March 2, 1917. The deliberations of the Court being considered as finished, in order to determine the sentence in the case begun by the Government of El Salvador against that of Nicaragua, it proceeded to vote on the twenty-four points which the approved questions contain, with the following result.

questions

The first question which reads: “The absolute demurrer of incompetency through lack of jurisdiction having been proposed by the high defendant party, on dismissing the legal action which took the proper course with regard to the complaint, does the Court proceed to grant such demurrer inasmuch as this refers to the original suit, notwithstanding the fact that the complaint had been radmitted by the Court, by its decree of September 6, 1916?” All the Judge eplied in the affirmative.

The second question which reads: “Is it to be considered that the Court is ecompetent to try the case, by reason of the matter under discussion?” All the Judges answer affirmatively, Judge Gutiérrez Navas adding, in so far as its refTrs exclusively to the Republics of Nicaragua and Salvador.

ehe third question which reads: “The suit being in relation to the contract intirests of a third nation which is not a party to it and is not subject to the jursdiction of the Court, has this Court the right to pass judgment thereon, to theextent that it may determine the legal rights between El Salvador and Nicaerag a?” All the Judges answer affirmatively, Judge Gutiérrez Navas adding th same declaration which he gave to the former question.

The fourth question which reads: “Do the details of the suit dated September 30 and October 2, 1916 contain matter foreign to the origin of the diplomatic controversy which led to the litigation?” Judges Medal, Oreamuno, Castro Ramírez and Bocanegra replied in the negative, and Judge Gutiérrez Navas in the affirmative.

The fifth question which reads: “According to the replies given to the question which precedes and to the holdings of the Court, was the Government of Salvador obliged first to seek an agreement with Nicarauga through diplomatic channels on the concrete points to which the details of the suit refer?” Judges Medal, Oreamuno, Castro Ramírez and Bocanegra answered negatively, and Judge Gutiérrez Navas affirmatively.

The sixth question which reads: “Is the Court competent to try and decide upon the petitions contained in the details to which reference has been made?” Judges Medal, Oreamuno, Castro Ramírez and Bocanegra replied affirmatively, and Judge Gutiérrez Navas in the negative.

The seventh question which reads: “Is the Court competent to try and to determine the right as to the initial petition of the suit?” Judges Medal, Oreamuno and Castro Ramírez replied yes, in order to determine legal rights between the high litigating parties; Judge Gutiérrez Navas no, because he considered it legally impossible to pass judgment upon the failure to fulfill a contract, without affecting the rights of one of the contracting parties; and Judge Bocanegra yes, in order to try and to pass judgment upon legal rights, which exist between the Central American States which are contending in the matter, but not to say anything which might affect the third parties which are not parties to the suit.

The eighth question which reads: “Consequently should they accept or reject the demurrers proposed by the defendant party?” Judges Medal, Oreamuno and Castro Ramírez replied that they should be rejected; Judge Gutiérrez Navas that they should be accepted; and Judge Bocanegra that the demurrer proposed should be accepted in that which refers to the final part of [Page 1102]the reply given by the plaintiff to the seventh question, and all the rest should be rejected.

The ninth question which reads: “With regard to the geographical and historical conditions, as also to the situation, extension and configuration of the Gulf of Fonseca, how should the international legal situation be determined?” They replied unanimously that it is a historical bay and with the character of a closed sea.

The tenth question which reads: “To which of those characteristics do the high litigating parties agree?” They replied unanimously that they agree that it is a closed sea.

The eleventh question which reads: “What is the legal status of the Gulf of Fonseca according to the replies which precede and to the agreement of the high contending parties, expressed in their arguments with regard to their right of possession and other derived rights?” Judges Medal, Oreamuno, Castro Ramírez and Bocanegra replied that the legal status of the Gulf of Fonseca according to the terms of the question is that of belonging to the three countries which surround it, and Judge Gutiérrez Navas that the right of possession belongs in respective portions to the three bordering countries.

The twelfth question which reads: “Do the high contending parties agree on the fact that the waters pertaining to the zone of control corresponding to them unite and flow together in the mouth or entrances of the Gulf of Fonseca?” They answered that they agree in that the waters which form the entrance of the Gulf are one.

The thirteenth question which reads: “What direction should the zone of maritime control follow with regard to the shores of the countries which surround the Gulf?” Judges Medal, Oreamuno, Castro Ramírez and Bocanegra replied that they should follow the contours of their respective shores, within as well as without the Gulf; and Judge Gutierrez Navas that the radius of a marine league of the zone of the territorial sea should be measured, with respect to the Gulf of Fonseca, from a line drawn across the bay to the narrowest part of the entrance to the open sea and from the zone of control, it extending three leagues in the same direction.

The fourteenth question which reads: “Does there exist joint ownership between the Republics of El Salvador and Nicaragua in the waters not on the shores of the Gulf and moreover in those which flow together and comprise the respective zones of control in which they exercise the rights of police, national protection and defense?” Judges Medal, Oreamuno, Castro Ramírez and Bocanegra replied yes, that there is joint ownership without injury to the right which belongs to Honduras in the waters not littoral, and Judge Gutiérrez Navas replied in the negative.

The fifteenth question which reads: “Consequently should there be excluded from the joint ownership or possession of the maritime league of littoral waters which belongs to each one of the states surrounding the Gulf of Fonseca their repective shores of terra firma and of their islands, in conformity to their internal laws and international law, and that over which they have exercised and are exercising their exclusive sovereignty?” Judges Medal, Oreamuno and Castro Ramírez answered in the affirmative. Judge Gutiérrez Navas answered no, because in the inner part of the closed gulfs or bays there exists no littoral zone; and Judge Bocanegra answered yes, for the high parties in litigation having accepted the character of the Gulf of Fonseca as a closed bay, it imposes the necessity of the existence of the maritime league for exclusive possession, as the Gulf belongs not to one alone but to three nations.

The sixteenth question which reads: “Has the Government of Nicarauga, in agreeing to the concessions which the Bryan-Chamorro Treaty contains for the establishment of a naval base, violated the right of joint ownership which El Salvador holds in the Gulf of Fonseca?” Judges Medal, Oreamuno, Castro Ramírez and Bocanegra answered in the affirmative, and Judge Gutiérrez negatively.

The seventeenth question which reads: “Does the establishment of a naval base in the Gulf of Fonseca by its nature and transcendency compromise the safety of El Salvador?” Judges Medal, Oreamuno and Castro Ramírez replied affirmatively. Judge Gutiérrez negatively. Judge Bocanegra answered yes, through the possible danger of aggressions at the naval base on the part of the other power or powers with which the assignee may in the future enter into war.

The eighteenth question which reads: “Are the concessions for a naval base in the Gulf of Fonseca and the leasing of the Great and Little Corn Islands, [Page 1103]agreed to by Nicaragua with the subjection of the Nicaraguan lands and waters to the laws and sovereignty of a foreign nation, acts in violation of Article 2 of the General Treaty of Peace and Amity signed at Washington by the Central American Republics?” Judges Medal, Oreamuno and Castro Ramírez answered affirmatively. Judge Gutiérrez Navas negatively, and Judge Bocanegra replied yes, as the change contemplated in this case does not affect only the state, in which it has taken place, but also the rest of the signatory countries of the treaty cited in the question.

The nineteenth question which reads: “Does it agree to declare that the Bryan-Chamorro Treaty injures the prime interests of El Salvador?” Judges Medal, Oreamuno and Castro Ramírez answered yes, in so far as they have regard to the sacred aspirations in their respective political constitutions and the rest of the subjects of public law in Central America concerning the reconstruction of the Ancient Country. Judge Gutiérrez Navas replied in the negative, and Judge Bocanegra replied that the Court could not proceed to make such a declaration by referring to the interests in the future of its moral and political character, whose legal estimation is without the jurisdiction of the Court.

The twentieth question which reads: “Does the Government of Nicaragua, in order to validly grant the concession of the naval base, require the consent and agreement of the Republic of El Salvador?” Judges Medal, Oreamuno and Castro Ramírez replied yes, that the Government of Nicaragua requires for the concession of a naval base the consent and agreement of the Republic of El Salvador. Judge Gutiérrez Navas answered in the negative, and Judge Bocanegra replied that as the action of nullity had not been discussed in the present he would eject from the expression the word “validly” which the question contains, and thus ejected, his reply would be in the affirmative.

The twenty-first question which reads: “Has the Government of Nicaragua violated through the celebration of the Bryan-Chamorro Treaty the rights which belong to El Salvador in conformity to Article 9 of the General Treaty of Peace and Amity mentioned above?” Judges Medal, Oreamuno, Castro Ramírez and Bocanegra answered affirmatively, and Judge Gutiérrez Navas negatively.

The twenty-second question which reads: “Is the defendant Government obliged to reestablish and maintain the legal status which existed between El Salvador and Nicaragua before the celebration of the Bryan-Chamorro Treaty on the subjects determined in this case in conformity to the principles of international law?” Judges Medal, Oreamuno and Castro Ramírez answered yes that it is obliged in conformity to the possible means sanctioned by that law. Judge Gutiérrez Navas answered no, because there had been no change in the legal status; Judge Bocanegra replied that in his opinion the Government of Nicaragua is obliged as to the reparations which may be possible in conformity to the principles of international law.

The twenty-third question which reads: “Can the Court order the Government of Nicaragua to abstain from complying with the Bryan-Chamorro Treaty, as the high plaintiff party asks?” Judges Medal, Oreamuno and Castro Ramírez answered no, because one of the high signatory parties of the Bryan-Chamorro Treaty is not subject to the jurisdiction of this Court, and Judges Gutiérrez Navas and Bocanegra replied in the negative.

The twenty-fourth question which reads: “May it proceed to make other condemnations in the present case in conformity to the fourth petition of the initial suit?” Judges Medal, Oreamuno, Castro Ramírez and Bocanegra replied in the negative because they had not been expressly requested or discussed, and Judge Gutiérrez Navas replied simply no.

judgment

Consequently the Court declares:

First: That it is competent to try and judge the present case brought by the Government of the Republic of El Salvador against the Republic of Nicaragua. Second: that the demurrers proposed by the high defendant party must be rejected. Third: that the Bryan-Chamorro Treaty, of August 1914, by the concession which grants a naval base in the Gulf of Fonseca, threatens the national safety of El Salvador and violates their rights of joint ownership in the waters of said Gulf in the form and with the limitations assigned in the act of voting. Fourth: that it violates Articles 2 and 9 of the Treaty of Peace and Amity signed at Washington by the United States of Central America, December 20, 1907. Fifth: that the Government of Nicaragua is obliged, availing itself of the possible means recommended in international law, to reestablish and maintain the legal [Page 1104]status which existed before the Bryan-Chamorro Treaty between the litigating Republics in this case. Sixth: that the Court abstain from passing judgment with respect to the third petition of the initial suit. Seventh: that with regard to the fourth petition of the initial suit it does not pass any judgment.

  • Angel M. Bocanegra
  • Daniel Gutiérrez Navas
  • Manuel Castro R.
  • Nicolás Oreamuno
  • Saturnino Medal
  • Manuel Echevarría, Secretary