Imágenes de páginas

the dispute to arbitration under the terms of the convention in force between them, if such convention covers the question or questions investigated.

ARTICLE V. The present treaty shall be ratified by the two high contracting parties according to their national constitutions, and the ratifications shall be exchanged as soon as possible. It shall take effect immediately after the exchange of ratifications and shall continue in force for a period of five years, and it shall thereafter remain in force until twelve months after one of the two high contracting parties have given notice to the other of an intention to terminate it.

The strict and honest fulfillment of the foregoing clauses is intrusted to the honor of the signatory nations.

In witness whereof, the respective plenipotentiaries have signed the present treaty and have affixed thereunto their seals.

Done in Washington, on the 24th day of July, in the year nineteen hundred and fourteen.






SAN JOSE, Costa Rica, November 9, 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 Jose, C. R., November 9th, 1916. — Mr. Minister: The office under my charge, in fulfillment of the duty imposed thereon by Article 56 of the Ordinance of Pro

1 Translated from the Official Gazette of Costa Rica, No. 113. Year XXXVIII, of November 12, 1916.

cedure 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.

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 copies 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 fulfill its last duty in this case in compliance with the provisions prescribed in the final part of the Ordinance of Procedure, 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 Jose 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 Conferences. 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 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 idea heretofore dominant in arbitration propaganda. And even if Article 1 of the convention above cited were not so clear and conclusive, but still required interpretation, resort could be had to the illuminating report made to the Nicaraguan Government by its delegates to the Conferences at 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 questionaire, 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 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.

Now, 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 texts 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 co-proprietorship 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 the 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 and apply them justly to the point at issue.

Thus, in affirming the existence of the juridical fact relating to

« AnteriorContinuar »