Papers Relating to the Foreign Relations of the United States, 1918

[Enclosure—Translation]

The Nicaraguan Minister of Foreign Affairs ( Chamorro ) to the American Minister ( Jefferson )

Managua , January 28, 1914 .

Mr. Minister: I have the honor to refer to your excellency’s esteemed note of the 9th instant, in which you are pleased to inform me that the Minister of Honduras at Washington presented to the State Department of the United States a memorandum regarding the boundary line between Nicaragua and Honduras, with the request that your excellency’s Government use its good offices before the Nicaraguan Government in securing the fulfilment of the arbitral award rendered by His Majesty the King of Spain in 1904 [1906].

Your excellency further sets forth that you have instructions from your Government to state on its behalf to mine that, as it is animated by the best feelings of friendship toward the two Republics, it would be very much gratified to see an early termination of the disagreement existing between the two interested Governments in connection with the boundary line between the two countries.

Your excellency goes on to give a brief outline of what you understand has been done from the time that a convention defining this boundary was signed in 1904 up to what your excellency considers an acceptance of the arbitral decision on the part of Nicaragua, and you conclude by expressing the hope that an early arrangement may be reached by virtue of the fact that in your judgment there is no apparent reason why Nicaragua should decline her cooperation in this respect with the Government of Honduras to the end that the beneficial application of the principle of arbitration may suffer no detriment in the present case.

Besides the documents relating to the present affair, which I have the honor to enclose and which I trust will serve to enlighten your excellency’s broad judgment in this important matter, I take the liberty of enumerating the following grounds which my Government has for considering, with deep regret, that the arbitral award of His Majesty the King of Spain, which so gravely impairs the indisputable rights of Nicaragua over an extensive territory, is of no validity until sanctioned by the National Congress.

1.: Because the designation of His Majesty the King of Spain as arbitrator was in open violation of the agreement contained in Articles 3 and 5 of the convention concluded in 1894 between the representatives of the two countries, J. D. Gámez and C. Bonilla, who had no power whatever to [Page 15] vary the stipulations of the said convention, such an alteration being possible only by virtue of a new convention duly approved and ratified by the high legislative bodies of the two parties, this circumstance invalidating from its start the action of His Majesty the King of Spain as arbitrator of the boundary dispute between Nicaragua and Honduras.
2.: Because the powers clearly defined in the aforementioned convention were exceeded in the award when the Royal arbitrator granted compensations which come solely within the jurisdiction of the mixed commission duly composed of representatives of both countries according to Rule 6 of Article 2, this fact alone likewise rendering the award null and void.
3.: Because the obscurity and contradictory character of the said award is another sufficient cause of invalidity, since they render the provisions of the award inapplicable, as the Minister of Foreign Affairs, José D. Gámez, himself declared in December, 1907, when giving an account of his acts to the National Legislative Assembly—of the acts relative to the demarcation of the boundary line. “The award in question,” he says, “contains, moreover, some contradictory points which render its practical application difficult, for which reason our Minister in Spain has been ordered to request an elucidation which will remove the difficulties to which the interpretation of these points by the very parties interested in the matter might give rise, etc.”
4.: Because the aforementioned instrument of arbitration contains errors which render it void and also make its application impossible.

And notwithstanding the reasons set forth, which are in themselves sufficient to invalidate the award, I will take the liberty of making the following observations to your excellency besides:

1.: Nicaragua has not made any official declaration regarding the acceptance of the award of His Majesty the King of Spain.
2.: The Executive has no power, unless expressly delegated to him, to carry out by and before himself an arbitral award which modified a solemn treaty, and still less to validate it, for both these things devolve upon the National Congress, and therefore any act in this behalf on the part of the Executive would be null and void.
3.: The general approval given by the National Assembly in 1907 to the acts of the Executive in the Department of Foreign Affairs, when Minister Gámez deemed it necessary to request an elucidation of the award for his own application thereof, did not imply an approval of the acts of the representatives of Nicaragua in violation of the Gámez-Bonilla convention, which is the basis and foundation of the works of demarcation, which, as I said before, required the special approval by the National Congress of the new treaty to be concluded in modification of the previous one, nor did it mean the acceptance by Nicaragua of any act arising from subsequent arrangements in contravention of said convention.

As I had the honor to state to the Department of Foreign Affairs of Honduras in a communication dated March 19, 1912, my Government thinks that, in view of the arguments in its favor and of its lack of authority to accept the award, this question ought to be submitted to the National Sovereign Congress in order that this august body may point out the just and safe mode of procedure.

I will not conclude without first expressing to your excellency the thanks of my Government for the friendly interest which your Government has been disposed to show in this vexing question, and without furthermore stating that my Government, being convinced of the justice of its cause, of the enlightened and upright judgment so honorably characterizing His Excellency the President of the United States, and of the sincere friendship of the people and Government of the United States, would, in order to demonstrate its keen desire to bring the present boundary dispute with Honduras to a prompt and equitable conclusion, accept with deep satisfaction the good offices of your excellency’s Government in referring the present case of the demarcation of the boundary between Nicaragua and Honduras to the final and unappealable decision of His Excellency President Wilson, upon previous compliance with all legal requirements.

I trust that this friendly disposition on the part of Nicaragua will convey to your excellency’s mind the assurance that my Government will accept [Page 16] an award which is free from the defects that I have been under the painful necessity of pointing out to your excellency and which does full and exact justice to the party that is in the right, after a careful examination of the arguments and circumstances on both sides, thereby affording my Government an opportunity to defer to a just award which will stop up the only source of discord with our sister Republic Honduras, as was done on another occasion when the boundary dispute with Costa Rica was referred without any observation to the arbitral decision of His Excellency President Cleveland, notwithstanding that award was unfavorable to Nicaragua.

I avail [etc.]

Diego M. Chamorro

[Subenclosure 1—Translation]

The Honduran Minister of Foreign Affairs ( Davila ) to the Nicaraguan Minister of Foreign Affairs ( Chamorro )

Tegucigalpa , April 25, 1911 .

Mr. Minister: In view of the fraternal and friendly relations which happily exist between Nicaragua and Honduras, and as it is to our mutual advantage that the most perfect harmony should exist in everything relating to the fulfilment of the award which put an end to the boundary question which had arisen between the two countries, I have the honor, under instructions from the President of the Republic, to inform your excellency that my Government, in accordance with the aforementioned award and with the legislative decree of February 4, 1907, has begun to perform acts of sovereignty and ownership (dominion) on the ground contiguous to Nicaragua along the recently marked boundary line, and has consequently designated the necessary authorities or officials, who have already been given instructions, orders, and circulars through the proper organ to organize that section of the country politically and administratively as soon as possible.

I also deem it opportune to state to your excellency that my Government has entered into arrangements with the concessioners or holders of lands comprised within the territory of Honduras, all of which is for the purpose of preventing obstacles in future from embarrassing the administration of the two nations, between which there should for various reasons always be the most perfect concord as well as the most sincere reciprocity.

Actuated by these same sentiments of conciliation and friendship, it has endeavored to facilitate everything connected with the recording of titles to real estate, as well as of concessions and of any lucrative dominion over the lands in question, and with this end in view the National Congress has issued the decree of the 6th instant granting a further period of one year within which to record the titles mentioned, of which decree I take pleasure in enclosing a copy to your excellency.

In addition to what has already been done in the way of determining the real boundary line between that and this Republic, it will be well to proceed to mark out the small part extending, according to the final paragraph of the award, from the confluence of the Poteca or Bodega River with the Guineo or Namasli River as far as El Portillo de Teotecasinte, since the award marked the remainder of the line with natural boundaries; and for this purpose my Government will communicate with your excellency’s Government as soon as convenient to the end that this operation may be carried out by common accord.

I indulge the hope that all the measures which I have mentioned will, by facilitating the final execution of the award, contribute unmistakably toward rendering more harmonious and friendly the relations which fortunately exist between Honduras and Nicaragua, thus obviating any kind of trouble.

I avail [etc.]

F. Davila

[Subenclosure 2—Translation]

The Nicaraguan Minister of Foreign Affairs ( Chamorro ) to the Honduran Minister of Foreign Affairs ( Davila )

Managua , March 19, 1912 .

Mr. Minister.: I have the honor to answer your very esteemed note of April 25, 1911.

In it your excellency is pleased to state that, in order to strengthen the friendly relations happily existing between Nicaragua and Honduras and in [Page 17] order to secure the greatest harmony in carrying out the award of His Majesty the King of Spain, you have to inform my Government that, in accordance with said award and with the legislative decree of February 4, 1907, the Government of Honduras has begun to perform acts of sovereignty and dominion in the territory bordering on Nicaragua along the boundary line recently traced, according to your excellency’s expression, it having furthermore proceeded to designate the proper authorities, to whom instructions, orders, and circulars have already been sent to organize that section of the country administratively and politically.

Your excellency also deemed it opportune to inform my Government that arrangements have been made with the concessioners or owners of lands comprised within the territory of Honduras, endeavor being made to facilitate all matters connected with the recording of titles to real estate, concessions, and any lucrative dominion over the lands in question, there having been issued, with this end in view, the legislative decree of April 6, 1911, by which the National Congress grants a further period of one year within which to record the titles mentioned.

Your excellency furthermore points out the expediency of demarcating that part of the line which extends from the meeting point of the Poteca or Bodega River with the Guineo or Namasli River to El Portillo de Teotecasinte, and you promise to write again to my Government in due time so that this demarcation may be done by common accord.

Your excellency concludes by expressing the hope that all these measures may tend not only to facilitate the execution of the award but also to render more friendly and harmonious the relations which fortunately exist between the two sister Republics.

I regret, Mr. Minister, that I absolutely disagree with the ideas expressed in your aforementioned note, and, while confirming here the ideas set forth in my communication of November 27 of last year in regard to the same matter and addressed to the Honorable Chargé d’Affaires of Honduras, Dr. Saturnino Medal, I will take the liberty of observing to your excellency that, inasmuch as the part of the boundary line to which you refer has not yet been formally traced and as this operation can not be performed or the points identified, which you call natural boundaries by a single one of the parties without the cooperation of the other (which has equal rights in the premises), even if it were a question of an incontestable decision my Government would be under the painful necessity and duty to consider inacceptable and void the proceedings which interrupt the status quo established between the two contiguous nations and which, for the sake of maintaining inalterable the fraternal relations which bind together our peoples and Governments, has been respected by both countries since before the convention concluded on September 1, 1870, by Commissioners Ferrer and Uriarte, the provisional boundary line observed being that descending from the mountain range and ending at Cape Falso, by virtue of which fact Nicaragua has maintained her authorities from the judicial and administrative region of Cabo Gracias a Dios to the Laguna de Caratasca.

The removal of these authorities and the acceptance of the other acts performed by Honduras without the participation or acquiescence of my Government would be tantamount to disregarding the sovereignty which Nicaragua has exercised in that region almost since her separation from the dominion of Spain, this being a claim which would only be admissible in case the supreme authorities of this Republic would recognize as an actual fact that this extensive zone of the Nicaraguan territory has been segregated, for otherwise the Government would be responsible before the nation for the undue abandonment of a large part of its territory without there first being rendered a clear, really valid, and actually binding award, which circumstances this Government unfortunately does not find to exist in the award rendered by His Majesty Alfonso XIII, King of Spain.

The Gámez-Bonilla treaty, concluded between Nicaragua and Honduras and finally ratified by both legislatures, defines clearly and precisely the essential conditions which must be fulfilled by the arbitral award in order that it may be binding upon the contracting nations.

This treaty prescribes the form and order in which the appointment of the arbitrators was to take place in order that they might in this capacity decide the boundary question between Nicaragua and Honduras as regards the section where the commissioners of the two Republics were disagreed, and as His [Page 18] Majesty the King of Spain was designated in violation of these provisions of the treaty mentioned, the organization of the arbitral proceedings as effected was void from its inception.

The high contracting parties agreed to have their boundary finally defined by a mixed commission composed of delegations from both Republics; and Article 2 of the aforementioned treaty not only confers upon this commission the necessary powers for the purpose, but it lays down beforehand the procedure to be followed in its operations.

Article 3 of the treaty provides that any point or points on the line of demarcation which the mixed commission might not have settled should be submitted, within a month at the latest from the termination of the sessions of the commission, to the decision of an unappealable arbitral tribunal, to be composed of one representative of Nicaragua, another of Honduras, and one member of the Foreign Diplomatic Corps accredited to Guatemala, the latter to be selected by the former two, or drawn by lot from two sets of three candidates each nominated by each party.

The two Republics did actually carry out this convention, appointing their respective commissions, which united to form the mixed commission, and the latter proceeded to the common frontier and traced the line from the starting point on the Pacific Ocean to El Portillo de Teotecasinte, setting up landmarks at the vertices formed by the lines of demarcation, taking as the sole dividing line between the two territories the great Dipilto Mountain Range at its upper line, where the waters divide and run to either side of the range.

Without any reason whatever that was justifiable according to the Nicaraguan commission, the Honduran commission dissented, claiming that the mountain range should remain within the Honduran territory and that the boundary line should follow the bed of a tributary of the Coco River called Guineo, then continuing first via the Poteca and afterwards via the Segovia River until reaching a certain point, whence it should continue southward on the meridian until it came to a river which should end in Sandy Bay.

Having rejected so radical a demand, the Nicaraguan commission proposed another scheme according to which the line should continue on the mountain range until it met the origin of the Frio River, and then continue along the meridian which, passes through Trujillo.

Discord having thus arisen, the part of the line in dispute remained unmarked, and steps were taken to carry out the provisions of Article 3 of the aforementioned treaty; for which purpose the Nicaraguan Government, in a resolution dated August 25, 1904, appointed José D. Gámez arbitrator, the Honduran Government appointing Alberto Membreño, which persons proceeded to Guatemala to perform their duties; but these arbitrators, contrary to the provisions of Article 3 of the treaty mentioned, did not form themselves into a tribunal comprising one member of the Foreign Diplomatic Corps for the purpose of marking the boundary line, as they should have done according to the provisions of Article 4 of the said treaty, but convened with the representative of the King of Spain, and without fulfilling the requirements of Article 5 of the treaty, appointed His Majesty the King of Spain as arbitrator.

The arbitrators Gámez and Membreño ought to have appointed as umpire (third arbitrator), according to the arbitration treaty, the person who should be drawn by lot from among the members of the Diplomatic Corps, making the selection over and over again in cases of refusal to serve until the members of that corps had been exhausted, in which sole event the appointment as arbitrator might have fallen to some public personage, foreign or Central American, and as a last resort the point or points in controversy might have been submitted to the decision of the Spanish Government, and in default of His Majesty the King of Spain, to any of the South American Governments to which the interested foreign offices might agree. The arbitrators Gámez and Membreño overlooked all these provisions, thereby violating a positive agreement and assuming an authority which they did not possess and which was only conferred upon them in the last case mentioned in Article 5 of the treaty in question.

It is an obvious truth in the law which governs nations that treaties should be fulfilled in the terms in which they were concluded, and that any modification or alteration of a solemn compact like the Gámez-Bonilla treaty is without force and can not be sanctioned except by the same authorities that concluded it, and then under the same solemnities of approval and exchange of ratifications.

[Page 19]

If, then, the representatives of the two countries, without any authorization and without the treaty being first amended or revised by both Republics, disregarded the express will (of the parties), positively stated and solemnly agreed upon, by not first calling upon the members of the Diplomatic Corps as arbitrators in the order prescribed in Articles 4 and 5, they violated the treaty and consequently made an appointment which was null and void.

The very contracting parties, Nicaragua and Honduras, could not revise this treaty except by concluding another one with like formalities through lawfully appointed plenipotentiaries, and such a revised treaty would have no force until ratified by the respective legislatures and until the usual exchange of ratifications had taken place; and the failure to fulfil these formalities nullifies all that was done by His Majesty the King of Spain as an arbitrator whose appointment was void; nor can the nullity be considered removed by express or tacit agreement of the Governments of Nicaragua and Honduras or by their participation in the debates which preceded the award, for, as said before, it was not within the power of the Executives of these countries to depart from a treaty approved by the respective Congresses, especially on as important a point as the determination of the competency of an arbitrator.

My Government hopes that the foregoing will suffice to convince your excellency that the question now before us will not be finally settled until the legislatures of both countries have given their solemn approval to the final decisions and settlements, and that therefore the rights of both parties are in the same situation as when the regrettable disagreement occurred between the boundary commissions of Nicaragua and Honduras.

It is not my intention, nor is this the occasion to renew the discussions on the vexing subject of territorial division, which has already been argued in the long controversy maintained in this regard between Nicaragua and Honduras, but I should be failing in my duty if I did not take the liberty of laying before your excellency’s high and just consideration the various observations which arise from a mere perusal of the award.

It is a principle sanctioned by all writers on international law that everything decided upon by arbitrators beyond their authority is null and void, and in the present case the non-observance of this principle appears plainly in the text of the award when powers are used which Rule 6 of Article 2 of the Gámez-Bonilla treaty confers exclusively upon the mixed commission, in regard to compensations, and by no means upon the arbitral tribunal of Guatemala or upon His Majesty the King of Spain.

It is also a universal principle that contradictory awards lack validity and are unenforceable, and the award plainly contradicts itself in dealing with the section of the line which is to separate the jurisdiction of the two countries in the territorial waters, for after adopting as a standard for the direction of the line the thalweg or deepest line of the channel of the stream of the principal arm of the Coco River, it declares that the islets or keys situated in said arm belong to Honduras, which leads to the inconsistency of leaving Honduran territory enclosed within Nicaraguan waters, which circumstance also renders the aforementioned thalweg line void, besides the fact that no decision is given as to the direction which should belong to each Republic in the sea according to the law of nations as a part of its respective territory.

And if all the foregoing were not sufficient, the award would be invalidated by the errors contained in this decision, which render it inapplicable in the field of the demarcation.

The award mentions a town by the name of Hara, which does not exist, and as this town is the one which serves in the award to determine the principal arm of the Coco River, it follows logically that the award decides nothing in regard to this essential point of the question. It furthermore assumes that between the island of San Pio and the geographical point appearing on one map under the name of Hara (it might be different or be entirely absent on another map, in view of the inaccuracies of our maps) there is but one single branch of the river, whereas in reality there are two or more, which circumstance leaves the line unestablished in a determinate and indubitable manner.

The present city of Cabo de Gracias a Dios, chief town of the comarca (region) of the same name, is not situated at the point indicated in the award, nor is there any evidence that the award might refer to the other town of the comarca, likewise known and also administered by Nicaragua.

Apart from other observations regarding the award, which Nicaragua will present in due time if necessary, I will take the liberty to add those which are suggested by the very nature of both territories.

[Page 20]

The Segovia River has always belonged to Nicaragua, for the province of that name comprises the Department of Segovia, which is situated in its northern part. Within this department are situated the Segovia River and its tributaries, all of the 18 towns which were formed on either shore before and after the conquest being Nicaraguan, such as Santa Maria, Dipilto, Macuelizo, Somoto, Ocotal, Mosonte, Totogalpa, Telpaneca, Jicaro, Ciudad Veija, Ciudad, Antigua, Jalapa, Teotecasinte, Opoteca, Condega, Yalaguina, Palacaguina, and Pueblo Nuevo.

Thus, then, if the declaration that the Segovia or Coco River also belongs to Honduras in any part of its course were to become effective, the unjustifiable absurdity would follow that the Government of that Republic, exercising the sovereignty granted to it there, would establish authorities and custom houses solely to tax goods which, along that commercial route, enter and depart from the towns of the interior of Nicaragua, for no Honduran town has access to the said river, being separated therefrom by the inaccessible Dipilto mountain range.

In view of the foregoing considerations, my Government believes that, as it has no power to admit the validity of the award, this painful question will have to be submitted to the National Assembly in order that this high body may indicate to it the just and safe mode of procedure, and that meanwhile the status quo ought to be maintained in the disputed zone, unless there should occur a friendly and equitable adjustment, which is the most worthy and appropriate between brother peoples and neighbors.

I trust that your excellency will be just in recognizing the sound arguments on which Nicaragua bases her action when, without disrespecting the august decision of His Majesty the King of Spain (to whom my Government is glad to render the homage due his high station), and likewise without disregarding either the feelings of cordial friendship entertained by Nicaragua toward the noble Honduran Nation and toward its illustrious Government, or the spirit of loyal Central American confraternity which has always animated the Nicaraguan people and which is to-day again the inspiration of its Government, she deems the award of His Majesty the King of Spain inacceptable in view of the observations made, and without any force until the Royal decision is sanctioned by the National Assembly, which will give final legal force to this arbitral decision as far as Nicaragua is concerned.

I avail [etc.]

Diego M. Chamorro