File No. 715.1715/96
The Nicaraguan Chargé ( Enriquez) to the Secretary of State
Most Excellent Sir: Referring to the conversation I had the honor to have with the Honorable Mr. Stabler about the proposal of President Bertrand of Honduras to settle the question of the validity of His Majesty the King of Spain’s award in the boundary dispute between the two Republics, and complying at the same time with the wish expressed by the Honorable Mr. Stabler that I submit a statement of the desires of the Government of Nicaragua with respect to the friendly cooperation of the United States in seeking such a settlement, I beg your excellency’s permission to lay before you the following remarks.
Certain measures of the border authorities of Nicaragua, in no wise hostile to Honduras, with which we maintain and wish to cultivate [Page 26] the most Cordial relations, but in the interest of an active fiscal vigilance, have caused some friction between the two countries which gave birth to the proposal of settling all pending questions through an arbitration that would decide as to the validity of the above mentioned award to which Nicaragua objects on grounds that have been fully set forth in various notes addressed to the Honduran Chancellery and would at the same time finally determine the boundary line of the above-named Republics.
President Chamorro promptly and willingly accepted President Bertrand’s conciliatory proposal and took the liberty of naming the Most Excellent President Wilson for the office of arbitrator, and I am under special instructions from my Government so to inform your excellency and to try and ascertain whether the Most Excellent President Wilson would, if, as is very likely, Honduras concurs in the foregoing suggestion, deign to render that great service to the two nations.
My Government on the other hand has no doubt that your excellency would, for the sake of harmony between two neighboring countries, both friends of the United States, declare in favor of expediting the speedy settlement of the existing serious difficulties by the worthy and honorable means of an amicable arbitration.
Although the two countries declare themselves in full agreement on the above-stated position, I deem it appropriate for the better illustration of the case, to say to your excellency that Nicaragua has been and in the utmost good faith is now in favor of a peaceful and brotherly settlement of all her difficulties with the other Central Republics; she gave an instance of this in the Costa Rican dispute when she accepted without a show of feeling or a remark of any kind the award of the late President Cleveland which was entirely against her, great as were her interests involved in the case.
In the Honduras case, though the arbitration had to do with the ownership of and sovereignty over a valuable coast measuring not less than 10,000 square miles, equal to nearly one-fourth of the territory of Nicaragua, she would have bowed in perfect good faith to the decision of the King of Spain, thus redeeming the pledge of the State and warding off injury to the beneficent practice of arbitration, if all, or at least the most essential conditions laid down in the protocol of arbitration, compliance with which had been declared by the Government of Honduras itself in an official note to my Government, to be necessary and indispensable to make the award binding on the contracting nations had been fulfilled in organizing the arbitration and rendering the award.
Indeed, the Gámez-Bonilla arbitration treaty places upon the arbitration of Nicaragua and Honduras, after organizing into a preliminary board, the imperative obligation to choose an umpire from the members of the Diplomatic Corps accredited to Guatemala and to report their choice to the Secretaries of State of the respective Republics so as to secure the acceptance of the person so chosen and, if that person should decline, immediately choose another umpire among the same diplomatic officers and so until the list had been exhausted. In that case only could a foreign public person, like the King of Spain, be appointed, but not until the several diplomatic officers in Guatemala had been chosen, drawn by lot, or had declined, [Page 27] nor could the Government of Spain or any South American Republic be designated, except after said diplomatic officers and foreign public persons had been eliminated, and in that case the designation was to be made, not by the arbitrators of Nicaragua and Honduras, but through “an agreement of the Chancelleries of the two countries,” under Article 5 of the treaty.
None of these conditions was complied with in the case under consideration since the aforesaid arbitrators, overstepping the bounds of their power and disregarding the stipulations of the treaty upon which the arbitration was based, of their own motion gave to the King of Spain the office of umpire, without even attempting to appoint even one member of the Diplomatic Corps, as they were bound to do by the stipulations of the treaty, and in taking that course they actually went so far, in seeking the acceptance of His Majesty the King, as to call upon the Minister of Spain to Guatemala, totally ignoring the Minister of Relations of Nicaragua who, as your excellency will understand, is the only organ of the Government in that branch of the administration and one whose agency could not be dispensed with under the treaty but constituted an essential condition for the validity of all the matters relating to Foreign Affairs, as provided by our political constitution and in accordance, with the most elemental principles of international law.
Furthermore, the treaty provides for collective arbitration consisting of arbitrators of Nicaragua and Honduras and an umpire chosen by these two, so that the award rendered by the King without taking the other arbitrators into consideration barely expresses the personal opinion of one of the members who should constitute the arbitral tribunal if the King had been designated in accordance with the obligatory provisions of the aforesaid convention.
There are other infractions of no less consequence, the enumeration of which would be tedious, not the least important being that which relates to the proceedings to which under the very protocol of arbitration the tribunal of arbitration was under strict obligation to conform and which gave occasion for ultra vires action to a certain extent, in that the King adopted a system of compensations which led him to fix purely artificial boundary lines in open disregard of the treaty provisions, and went so far in that direction as to render an award ultra petita wholly void under international law, and left the question unsettled by deciding points that were not submitted to his decision and leaving undecided those that had been referred to him by the parties.
Let all this be said without going into the merits of the case and by way of explaining to your excellency the reasonable and good grounds upon which my Government held that the Gámez-Bonilla treaty had not yet been carried into effect and that the aforesaid award of His Majesty the King has not created a legal condition binding on Nicaragua inasmuch as none of the requirements of the protocol invoked for the validity of the arbitral proceedings has been complied with, thus leaving the boundary dispute with Honduras in the same status as before the decision of the King.
I must not omit to say to your excellency that in a note of January 26, 1914, my Government, on the occasion of a first proposition of [Page 28] arbitration made by the Minister of Honduras to this Government and transmitted to that of Nicaragua through the Legation of the United States at Managua, furnished your excellency’s Government with the fullest explanations on the important matter which forms the subject of this note and, for a better understanding of the questions, I take the liberty of referring to that note and its accompaniments which clearly bring out the mistake under which Honduras is laboring and which appears also to be that of your excellency’s Government, as to Nicaragua having on any occasion declared the King of Spain’s award valid, an error which no doubt prompted the two Governments to urge the execution of the said award.
I avail [etc.]