Papers Relating to the Foreign Relations of the United States, With the Address of the President to Congress December 4, 1917
File No. 817.812/322
The Minister of Foreign Affairs to the Secretary of State
Managua, December 3, 1917.
Most Excellent Mr. Secretary: In the discharge of a high duty of American consideration and brotherhood, I have the honor to apply to your excellency and to take the liberty of forwarding to you herewith a printed copy of the circular note recently sent by this Department to the Central American Governments signatory to the Convention of Washington, December 20, 1907, for the purpose of explaining and justifying the attitude that was forced upon my Government of ignoring and rejecting the two judgments rendered against it by the Central American Court of Justice in the actions that were instituted by the Governments of Costa Rica and Salvador.
Most respectfully and courteously begging your excellency kindly to appreciate with your characteristic upright and justice loving judgment the conduct of Nicaragua in the two cases here mentioned, it affords me great pleasure to renew to you the assurances of my most high and distinguished consideration, with which I subscribe myself [etc.]
The Ministry of Foreign Affairs to the Central American Governments
Managua, November 24, 1917.
Most Excellent Mr. Minister: The recent awards are well known to your excellency which the honorable Central American Court pronounced in the suits brought by the Governments of Costa Rica and El Salvador against the Nicaraguan Government on account of the conclusion of the Chamorro-Bryan Treaty of August 5, 1914. In the first of these awards, rendered September 3, 1916, the High Court declared that: “The Nicaraguan Government 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”; and in the second, rendered March 9 of the present year, it decided, in the manner and with the limitations embodied in the vote and in paragraph II of the second part of this award, that: “the Bryan-Chamorro Treaty, of August 5, 1914, owing to the concession which it contains of a naval base in the Gulf of Fonseca, threatens the national security of El Salvador and violates her rights of joint dominion in the waters of said Gulf,” which decision was rendered in the following terms: “that it violates Articles II and IX of the Treaty of Peace and Friendship signed at Washington by the Central American Nations on December 20, 1907; and that the Nicaraguan Government is obliged to avail itself of all possible means sanctioned by internal law in order to restore and maintain the legal status which existed prior to the Chamorro-Bryan Treaty between the contending Republics as regards the matters considered in this suit.”
[Page 1105]Your excellency is likewise aware of the stand taken by my Government in regard to these decisions, which was none other than to refuse acquiescence therein, inasmuch as they involve, besides other defects, a manifest overstepping of authority; and, actuated by a natural desire to justify this stand before the Governments signing the Convention which created the Central American Court, under date of December 20, 1907, I deem it proper and necessary, for the sake of the good name and the interests of my Government, to at least roughly outline in the present circular note the arguments of law and justice which strongly supported it in both cases in the exercise of its defense and in the firmness of its resolution.
In order to attain this object let it suffice first of all to recall the fact that the character which distinguishes the honorable Central American Court is that of a Tribunal of Arbitration, and that consequently, whether it be a question of the terms in which the agreement to arbitrate is drawn up or of the awards which this Tribunal may render, it must infallibly be taken as a matter of course that there will be a strict observance of the sanctioned general principles of law which rule, govern and regulate international acts and without which the natural defense of the impaired rights of the High Contending Parties would be impossible.
From this standpoint it would not be out of place to recall, furthermore, that however absolute and general the express conditions may be under which a nation agrees to accept an award, they can not deprive such nation of the right to review the awards, and that the latter, in case of exceeding of authority by the court and of notorious injustice, not only may but should be combated and rejected. Thus the President of the United States, in his message to the American Senate in 1887, referring to an arbitral award against which the Haitian Government was protesting, in his opinion justly, expresses himself as follows:
“The duty of the Executive to refuse to carry out an award which, in spite of the irreproachable character of the arbitrator, proves iniquitous and shocking, has been proclaimed many times by the Department of State and sanctioned by the Supreme Court of the United States.” (Moore, International Arbitrations, Vol. II, page 1139.)
More positive still is Calvo, who, in treating of so important a point, speaks in the following conclusive manner:
“From the fact that the award is binding and unappealable it can not be inferred as an absolute consequence that the parties shall not be permitted to combat it; there are, on the contrary, certain cases in which they are fully authorized to refuse to carry it out. These cases may be summed up thus: When the award has been rendered without the arbitrators having been sufficiently authorized, or when they decide outside or beyond the terms of submission.” (Dictionary of International Law.)
The right being thus generally established which belongs to one or more of the contending parties in an arbitral suit to refuse their consent to such decisions not in conformity with law, I must demonstrate, to my regret, that the awards rendered by the honorable Central American Court and to which I refer herein are tainted by the aforementioned excesses of authority, amply set forth, which render them entirely unacceptable. The nature of the subject compels me to proceed by parts.
I
award in the suit of the costa rican against the nicaraguan government
In order to show that the Nicaraguan Government did not violate to the detriment of Costa Rica, by concluding the Chamorro-Bryan Treaty, the rights granted to this latter Republic by the Boundary Treaty of 1858, the Cleveland Award of March 22, 1888, and Articles II and IX of the Central American Treaty of Peace and Friendship of December 20, 1907, it becomes necessary to enumerate them in the following order:
- a.
- Through Article VI of the Treaty of 1858 Costa Rica acquired the perpetual right of free navigation through the Nicaraguan waters of the San Juan River up to within three English miles of Castillo Viejo, for purposes of commerce and in order that her ships might come to the Nicaraguan shore without payment of any tax.
- b.
- Under Article VIII the Costa Rican Government acquired the right to be consulted by the Nicaraguan Government before the conclusion of any contract on canal construction or transit, and it was provided that the vote of Costa [Page 1106] Rica should be merely advisory (a consulting voice) in case the natural rights of Costa Rica were not injured in the transaction.
- c.
- The Cleveland Award expressly defined what these natural rights of Costa Rica were and determined the circumstances under which they should be considered injured, expressing itself as follows in regard to the first point:
The natural rights of the Republic of Costa Rica, to which said stipulation (Article VIII) alludes, are the rights which, by virtue of the boundaries 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 Salinas Bay;
those which it also possesses in all that part of the San Juan River which lies more than three English miles below Castillo Viejo;
perhaps other rights not particularly specified here.
Regarding the second point, the award determined as follows when these rights are to be considered injured or violated.
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 aforesaid ports;
or when such an obstruction or deviation of the San Juan River is brought about as shall destroy or seriously impede the navigation of the same or of any of its arms at any point where Costa Rica has a right to navigate them.
Now, under the Chamorro-Bryan Treaty territory belonging to the Republic of Costa Rica is not occupied or inundated nor has anything injurious to Costa Rica been done in any of the aforesaid ports, nor has any obstruction or deviation of the San Juan River been brought about through the said treaty which destroys or seriously impedes the navigation of the same or of any of its arms at any point where Costa Rica has a right to navigate them.
The best argument that the Nicaraguan Government can present as a proof that it has not injured or violated the natural rights of Costa Rica as specified in Article 10 of the Cleveland Award through the conclusion of the Chamorro-Bryan Treaty is the palpable fact that these rights are on the same footing as they were before the treaty was concluded, notwithstanding the latter has been fully carried out. Not only has the Nicaraguan Government not injured or violated the natural rights of Costa Rica by concluding said agreement, but it has not been possible for it to injure them, inasmuch as, the execution of this agreement did not involve the accomplishment of any material work, which is the only way in which those rights could be injured.
The Chamorro-Bryan is not a treaty on canal construction but one of option. It is a deed of transfer to the United States Government of the rights belonging to Nicaragua, as sovereign of the territory, to begin work on the canal at any time. As this treaty is not one on canal construction or transit, the Nicaraguan Government was not under obligation to consult the Costa Rican Government, since the obligation contracted in this respect by the Nicaraguan Government related solely to that species of contracts, as clearly provided in Article VIII of the Boundary Treaty of 1858, to whose terms the interpretation of the Cleveland Award refers, that is, as said before, to agreements on canal construction or transit.
If the award of the honorable Central American Court turns out, by virtue of the foregoing, to be contrary in its substance to the reality of things, and therefore inadmissible, it is not less so in its form, which is ingenious but unfortunately vitiated by lack of logic and legality, which are not found either in the part comprising the concession or in the analysis made of its parts by the honorable Court.
The clause by which the rights to make a canal are transferred to the American Government is embodied in the following alternative:
The Nicaraguan Government forever grants to the United States Government the exclusive ownership rights necessary and suitable for the construction, operation and maintenance of an interoceanic canal via the San Juan River and the Great Lake of Nicaragua, or by any route in the territory of Nicaragua.
Considered by itself, this proposition does not in any wise impair the natural rights of Costa Rica, since it does not involve anything but the transfer of the sovereign rights of Nicaragua to construct a canal through her territory. And just as these rights existed in the Nation without having ever affected the natural rights of Costa Rica as granted her by the treaties and award mentioned, so in being transferred to the United States Government they could likewise not [Page 1107] cause any injury to those rights, inasmuch as a transfer is no more than an incident which in no wise modifies the nature of said natural rights.
A decision was nevertheless necessary and therefore the honorable Central American Court proceeded to make an analysis, absolute and categorical, of the features of the aforesaid proposition, embodying the cession of rights to construct a canal, though it ought to have made the analysis in a conditional form, in accordance with the immutable laws of logic.
As a matter of fact the Court propounded the following questions, among others, in the vote of September 22, 1916:
“In the Chamorro-Bryan Treaty was Costa Rica entitled to give a decisive vote regarding the canal concession via the San Juan River and the Great Lake of Nicaragua?” The majority answered in the affirmative.
“In the Bryan-Chamorro Treaty has Costa Rica a right to give a decisive vote in the canal concession via any other point in the Nicaraguan territory provided the rights of Costa Rica are not affected as specified in number ten of the Cleveland Award?” All the Magistrates answered negatively.
The analysis of the proposition having been made in this deliberately categorical but at bottom essentially conditional manner, it was necessary to return to a synthesis of the proposition analysed and show the double and opposed result which was obtained from the analysis, that is, the affirmation and the negation, inasmuch as the rights transferred to make a canal might be exercised alternatively (optionally), either via the San Juan River or by any other route in Nicaraguan territory.
But the honorable Central American Court, disregarding the distinctive (disjunctive?) character of the proposition it had analysed and which per se involved an indeterminateness with respect to the route to be adopted when it should be a question of exercising those rights, assumed as a certainty arising from the concession that the Canal would be constructed via the San Juan River and the Great Lake, as is proven by the following paragraph:
The Chamorro-Bryan concession, in granting the necessary rights for the construction of a canal via the San Juan River, forgot the legitimate rights of the High Plaintiff, inasmuch as the carrying out of the work by that route necessarily implies the occupation of the Costa Rican shore or the consequent inundations of its territory, as well as the use of the Costa Rican affluents, etc. (Considerando 3, par. 7, Analysis of the action.)
The Nicaraguan Government by the Chamorro-Bryan Treaty did not grant rights to construct a canal determinately via the San Juan del Norte River, but to effect it indeterminately: by this route and that of the Great Lake or by any other route in the territory of the Republic. Consequently, said concession not having designated any route determinately, and not having as an immediate and direct object the construction of a canal; moreover, it being impossible to proceed to the construction of a canal by virtue of this treaty, as shown by the final part of Article 1 of the Agreement, the Nicaraguan Government maintains that the honorable Court did not decide according to truth and justice when it declared, contrary to the evidence presented, that the treaty in question violates the rights of Costa Rica.
II
the award in the suit of the government of el salvador against nicaragua
No less oversteppings or excesses of authority are involved in the award which the same honorable Court rendered against the Nicaraguan Government in the suit instituted against it by the Republic of El Salvador.
My Government opportunely informed the honorable Tribunal that the Chamorro-Bryan Treaty was a matter that did not come under its jurisdiction, inasmuch as it did not constitute a purely Central American question and, in view of the indivisibility of the contract, it was impossible to render in regard to it an award against the Nicaraguan Government without at the same time affecting rights acquired thereunder by a third nation not subject to the jurisdiction of the Court.
But the honorable Tribunal, arrogating to itself an authority far from having been conferred upon it by Article 1 of the Convention to which it owes its origin, and placing a broad construction on the words defining its sphere of jurisdiction, decided to embrace therein not only purely Central American questions but also mixed questions involving interests of a third party and even those which affect the honor of nations. In justification of these latter two points, it adduces the untenable argument that if its interpretation did not prevail the labors of the [Page 1108] illustrious negotiators of the compacts would have been in vain, as also the moral force inspired in them by the presence of the United States and Mexican Governments, which took part in their preparation.
To this was given the obvious reply that it is not dishonorable or subversive of the ends of the arbitral institution that it should not take cognizance of matters not subject to its jurisdiction, or of those which can not be submitted to it according to international law, such as questions of a political character and concerning national honor.
The opinion of the honorable Tribunal in this regard, which is not in conformity with the reality of things, led it to impose upon my Government, through its award, an obligation which is either unexecutable owing to manifest impossibility, or, if it is capable of execution, it would hurt the interests of a third party not subject to the jurisdiction of the Tribunal.
It is beyond doubt impossible to restore the state of affairs existing prior to the conclusion of the Chamorro-Bryan Treaty without breaking the latter, and the bare inadmissible claim of the Court in this regard deeply wounds national honor, independence and sovereignty, these being attributes which have neither been placed under the jurisdiction of the honorable Tribunal nor could be in any case that might arise, for the reason that this would mean placing in its hands without counterpoise of any kind the vital interests of the Nation.
In treating of this point it behooves me to state that my Government absolutely disagrees with the opinion of the honorable Court to the effect that the wording of Article I of the creating Convention involves “the absolute sanction of compulsory arbitration, of which the tribunal is the sole type in the world,” which opinion has been carried to such extremes that it enabled it to frame the following unheard-of declaration, made in a note of the clerk of the Court under date of July 14, 1917, addressed to the Ministry of Foreign Relations of Nicaragua: “National honor, absolute independence, unrestricted sovereignty, vital interests of the Nation, and other ‘sacramental formulas’ used for the purpose of eluding the action of justice through arbitration, are banished from the halls of the Central American Court”: a surprising and significant declaration against which I must, overcoming scruples based on the highest respect for the honorable Tribunal, freely perform an unavoidable duty by entering the protest of my Government.
If the general principles of international law which preserve the rights of the parties injured by an arbitral award were not sufficient to repel such an opinion, besides authorizing the parties to oppose and combat the award under the circumstances designated by international law, I should take the liberty to remind the honorable Court of the absolute impossibility of its passing upon matters of this nature, inasmuch as the body of international law does not afford any established rules for forming a true judgment in this matter, or any authorization for assuming this right of passing ad libitum upon questions of such transcendent importance.
This Government likewise thinks that the use of lawful arguments for refusing to accept an award considered unjust can not rightly be characterized by the strange words “sacramental formulas for eluding the action of justice”, this being an unwarranted charge which my Government refutes, especially when such justice does not exist, as is evident in the present case.
Another of the points embraced in the award is that relating to an imaginary joint dominion over the waters of the Gulf of Fonseca among the Republics of Nicaragua, Honduras and El Salvador.
These three Nations have uniformly recognized that the waters of this Gulf are prolongations of their respective territories and that the three sovereignties consequently concur in their respective parts over the Gulf. The reason of this recognition is the small area of the bay.
When the Honduran Government learned of the claim of the existence of a joint dominion of the three Nations over the Gulf, which claim was embodied in the suit brought against my Government before the honorable Central American Court by the Government of El Salvador, it made a protest to that Government, under date of September 30, 1916, which it conveyed at the same time to the knowledge of the High Tribunal and of which I reproduce the following paragraphs:
“It is not among the purposes of the Honduran Government to discuss the grounds of your excellency’s Government in upholding, in the suit brought against the Nicaraguan Government, rights of joint dominion in the Gulf of Fonseca, nor is it presumable that the Central American Court will decide a point which affects the Republic of Honduras in a suit in which this Government has no participation.
[Page 1109]“The object of the present note, most excellent Sir, is to protest on behalf and with the express authorization of my Government against the alleged right of joint dominion which your excellency’s Government claims in the suit instituted against the Nicaraguan Government, and to declare, as the Honduran Government hereby declares through me, that it has not recognized and does not recognize a state of joint dominion with El Salvador or with any other Republic in the waters which belong to it in the Gulf of Fonseca.
“My Government furthermore declares that the line fixed in 1900 in the waters of the said Gulf by the Mixed Boundary Commission of Honduras and Nicaragua in order to expressly and clearly determine the limits of their maritime frontier will be considered as such from the time its validity and practical effectiveness was fixed, as well as the rest of the line drawn by said commission on the land frontier, and that at no time since the consummation of the act fixing the said line has the Government of El Salvador made any objection against the validity thereof.
“The circumstance that the boundary line between Honduras and El Salvador has not been marked does not constitute commonness and joint dominion in the waters of the Gulf of Fonseca.
“The very text of Article 13 of the Salvadorean law on navigation and marine, which says: ‘The territorial sea of the Republic is divided into five maritime departments in the following manner: 1. Maritime department of La Union, comprising the Bay of Conchagua and the part of the Gulf of Fonseca in which are situated the Salvadorean islands and the territorial sea up to the parallel of the eastern mouth of the San Miguel River,’ and which was inclosed as an exhibit with the suit mentioned, appears to demonstrate the fact that your excellency’s Government did not consider that community of dominion with Honduras to exist or the right of joint dominion which it alleges to be formal.
“The rights which El Salvador believed that it had over part of the Gulf of Fonseca and over some of its islands are not defined or recognized by Honduras. In order to clear up these rights, boundary conventions which have hitherto been unsuccessful were concluded between the two Nations; but the Honduran Government considers that, notwithstanding the indeterminateness of the boundary lines, the Salvadorean Nation, which indicated its own boundaries in the first Constitution it adopted after gaining its independence, could not extend them beyond what belongs to it according to the corroborative documents of both Republics.”
The points embraced in the protest of the Honduran Government against the joint dominion claimed by the Government of El Salvador in the Gulf of Fonseca coincide with the answer given by my Government to the Salvadorean suit in regard to this point:
While my Government realizes the dominion and possession of the three countries in the Gulf of Fonseca, which dates back to the beginning of the conquest of the American Continent, it absolutely denies that this dominion and possession have been exercised in common or have constituted a community of possession between the said Republics. No legal technicality warrants considering as a community of possession the coexistence of contiguous sovereign countries between which the boundary line has not yet been marked, nor is the use of such terms warranted by the circumstance of concurrence or adjacency of the territories of Nicaragua, Honduras and El Salvador to the waters of said Gulf, for what really occurred for a long time on account of this situation was that the territorial part belonging to each of the three Republics had not been separated by a formal demarcation of boundaries.
To the fundamental arguments preceding should be added the following:
The Republic of El Salvador not bordering on Nicaragua, the Republics of Nicaragua and Honduras agreed between themselves in 1894 to fix their boundary line, the demarcation having been begun at the western part of both, in the Bay of Fonseca, as is shown from Act II of the Honduro-Nicaraguan Mixed Boundary Commission, concluded at San Marcos de Colon on July 12, 1900. That the Republic of El Salvador does not border on Nicaragua is plainly demonstrated by the geographical position of both Republics, which have Honduras between them, and furthermore by the frank official declaration of the Government of said Republic (El Salvador), as appears from the note of the Department of Foreign Affairs addressed to the International Central American Bureau in connection with the request made of it by the latter that it enforce the rules adopted by the Third Central American Conference regarding free trade, which note reads as follows in its pertinent part: [Page 1110]
“In reply I take pleasure in stating to your Honorable Institution that my Government has for some time been endeavoring to conclude commercial arrangements with the Governments of Guatemala and Honduras on bases which shall not injure the Public Treasury of any of these Republics or of El Salvador. As the subject is rather delicate and its solution very complicated, these arrangements have proceeded slowly, without however failing to occupy the attention of this Government, which hopes to bring them to a beneficent and practical conclusion in a short time. When this object is accomplished it intends to undertake a similar task with the other Republics, Costa Rica and Nicaragua, the fact that it has not common boundaries with which renders the arrangement of free trade less imperatively necessary.” (Note of the Salvadorean Foreign Office, No. 587, of July 16, 1917.)
Therefore, as the plaintiff himself admits that he has not a common boundary with Nicaragua (a truth which geography itself has proclaimed), the honorable Court could not, without exceeding its powers, set down in its award that there is a joint dominion between El Salvador and Nicaragua in the waters of the Gulf of Fonseca, since it would follow as a necessary inference from such joint dominion that the boundaries were common.
What is more, the honorable Court, perhaps for the sake of not contradicting the provisions of the Salvadorean law on navigation and marine, and fundamentally opposing the theory that the waters of the Gulf constitute a common possession (community) and joint dominion of the three adjacent Nations, distinguished three classes of waters in the Gulf: 1. littoral waters; 2. waters for inspection zones; and 3, an undivided reserve of waters between the three Nations. With respect to the littoral waters, three nautical miles in extent, it declares that in them each Nation has a right to exercise its absolute and exclusive sovereignty; beyond these three nautical miles it grants to each Nation two nautical leagues for the exercise of revenue police; and it is only beyond these two leagues of inspection zone that it establishes the existence of common waters. Here are the pertinent paragraphs of the clerk of the Court, dated July 14 of this year, in which are summed up the grounds with respect to joint dominion on which the award was based:
“The Court, then, recognizing as a general thesis that joint dominion is incompatible with the exercise of sovereignty in the zone or strip which constitutes the littoral sea in each of the two Nations, and, more than this, that owing to the peculiar geographical configuration and ample extent thereof, each of these Nations has a perfect right to exercise its absolute and perfect sovereignty in the three nautical miles expressly excepted in the award, took special care to classify the waters contained in the Gulf of Fonseca into three distinct categories: That comprising the littoral league; that comprising the two further leagues intended for inspection zones for purposes of revenue policing; and that embracing a reserve of waters not comprised in the preceding categories. It clearly decided and thus states in the ‘Considerandos’ of the award that joint dominion exists solely in the rest of the waters of the Gulf, after measuring the three miles which form the maritime littoral absolutely and exclusively owned by each nation.”
From this declaration of the Honorable Tribunal, admitting for a moment the classification, it is deduced that the waters in which, in its judgment, the alleged joint dominion and community of possession exist, are situated beyond the two leagues of the inspection zone.
It is consequently logical to infer that when the honorable Tribunal declared that the Nicaraguan Government violated the joint dominion of El Salvador and Nicaragua over the Gulf by concluding the Chamorro-Bryan Treaty it notoriously departed from the reality of things, which ought always to serve as the basis of any just decision, for Nicaragua made the concession of the naval base in her own maritime territory, already demarcated with Honduras since 1900.
The naval base can not in any case embrace the three nautical miles in the Gulf which the Court calls littoral sea; so that, even if the territorial division between Nicaragua and Honduras had not been made, the Nicaraguan Government could not justly be accused of having violated the capricious joint dominion by the concession mentioned, inasmuch as the Court established that each Nation of the three which are adjacent to the Gulf may exercise its absolute and exclusive sovereignty within the three nautical miles comprised by the littoral sea of each, it following hence that the honorable Tribunal could not have rendered this part of its award to which I refer without exceeding its powers and deeply affecting the truth of matters.
[Page 1111]On the other hand, eliminating the territorial part of the Gulf which belongs to Nicaragua by virtue of the division made in 1900 with Honduras and taking into account the project of a boundary line contemplated for some time between El Salvador and Honduras, the reserve of waters to which the Court refers disappears.
As a matter of fact, the project of a boundary line between these countries is set forth in Article 2 of the Boundary Treaties of April 10, 1884, which reads: “the maritime line between El Salvador and Honduras starts at the Pacific, dividing by half, in the Gulf of Fonseca, the distance existing between the islands of Meanguera, Conchaguita, Martin Perez and Punta Zacate, of El Salvador, and the islands of El Tigre, Zacate Grande, Inglesa and Exposicion, of Honduras, and it ends at the mouth of the Goascoran.” There is no doubt that this line, which was not approved by the Congress of Honduras, will be the one which sooner or later, with a change of details, will have to constitute in the Gulf the territorial line between El Salvador and Honduras.
And when this line is established, and taking into account the one already drawn in the same waters between Nicaragua and Honduras, where will the reserve of waters be situated which was mentioned in the award of the honorable Tribunal?
And if this reserve of waters, imagined by the honorable Tribunal and not admitted by Nicaragua, is the part still undivided between the countries in question and constitutes the joint dominion, with what justifiable reason is it declared that the Nicaraguan Government has violated this joint dominion by granting the naval base, when the latter is to be established on a point of the territory of Nicaragua?
The deeper my Government goes into this matter the more firmly does it become convinced that the decision of the Court constitutes without any doubts a flagrant exceeding of authority.
And no less so is the obligation imposed by the same award on the Nicaraguan Government to restore the legal status existing prior to the conclusion of the Chamorro-Bryan Treaty, for this obligation, if capable of being performed, would involve a very grave impairment of the national honor and independence.
Granting that the suit of the El Salvador Government is founded on the points of law which it alleges were violated by the aforesaid convention, it would be impossible, from any standpoint, to restore this legal status without doing away with the convention itself. For how could the effect cease to exist if the cause producing it continued? Consequently, if the aforesaid obligation were capable of being performed, it would be tantamount to admitting that Nicaragua could debase her sovereignty, affect her independence, and impair her honor, by having to undo what is done, in undignified obedience to unacceptable pretensions of a supposedly superior power. But the fact is that Nicaragua has not deposed her sovereignty and independence into the hands of the Central American Tribunal of Arbitration in order to submit to it unconditionally, implicitly relinquishing those high attributes which make her a sovereign unit in the international commonwealth. The award would have had some rational, logical and juridical sense in the part with which I am engaged if, as intimated by the honorable Magistrate for Guatemala, Licenciado don Angel Maria Bocanegra, it had been decreed that the Government of Nicaragua is under obligation to make such reparations as may be possible in conformity with the principles of international law. Such an obligation would have been reasonable in case the violations of right alleged by the plaintiff existed; for by this means, in this supposed case, both the rights of the plaintiff and the national honor and independence would have been saved; but it is inconceivable that judges not authorized for the purpose should have imposed upon the Nicaraguan Government an obligation which, if it had to be carried out, would deeply wound the honor of the Nation.
In the foregoing statement, Mr. Minister, are set forth the powerful and just grounds which have compelled my Government to reach the unbreakable resolution to reject the awards rendered by the honorable Central American Court in the suits brought against it respectively by the Governments of Costa Rica and El Salvador, not without calling to mind that by this attitude it is far from causing detriment to the cause of international arbitration, inasmuch as the rights of no one are injured when legitimate use is made, as in the present case, of the right which international law grants to any of the parties injured in an arbitration suit.
I take pleasure [etc.]