« 이전계속 »
the community of interest of the high parties litigant in Salinas and San Juan del Norte Bays, nothing new was declared, nor any fact established that was contrary to the terms of the documents cited: what the Court did was to apply the clear and positive letter of the Cañas-Jerez Treaty, Article 4th of which reads: "The Bay of San Juan del Norte and the Bay of Salinas shall be common to the two republics, as also the advantages and the obligation to join in their defense.” When in its decision the Court stated the legal relation existing between Costa Rica and Nicaragua growing out of the article above quoted, and framed its statement in doctrinary form in order to deduce its conclusions, it did not review any award with the purpose of reviving boundary questions already decided, nor did it make any declaration contrary to the arbitral award referred to; the Court merely proceeded in the usual course of ordinary judges who neither make or revise the laws, but who interpret them in order to apply them to concrete cases brought before them.
If on this point — which is essentially of secondary importance and does not go to the roots of the cause the Government of Nicaragua maintains a different criterion, it should have presented its allegations and proofs, for it has had abundant time and opportunity in which to do so. But having failed to present its case, its censures upon the Court's action, which gives full faith and credit to the positive stipulations of two international agreements that are acknowledged by both parties litigant to have perfect legal existence, must be held to be wholly without effect.
With respect to the argument that, concerning the question decided, the Costa Rican Government did not fulfill, previously to the presentation of its complaint, the essential requirement to take steps through diplomatic channels looking to a settlement of the dispute, and that, therefore, the Court did not acquire the necessary competency to take jurisdiction of the case, the Court has demonstrated with elaborate reasoning in its decision that the Nicaraguan Government, in setting up the omission above mentioned, relied solely on an error in wording. And in demonstration in its decision, that the requirement cited had in fact been fulfilled, the Court acted upon facts thoroughly well substantiated and not arbitrarily and capriciously, as affirmed by the Government of Nicaragua; the Court's judgment on the facts so proved was reached through a course of rigorously logical and systematic consideration thereof, wherein they were given the due weight and careful thought called for in Article XXI of its organic convention, which article provided that "in deciding points of fact that may be raised before it, the Central American Court of Justice shall be governed by its free judgment."
There are, however, certain other considerations of special importance on this point that should be discussed. The Nicaraguan Government has claimed that the Government of Costa Rica should have again initiated steps through diplomatic channels, before having presented its complaint to the Court, in view of the fact that the steps theretofore taken in 1913 by that Government related to the Chamorro-Weitzel Treaty that never went into effect. The Nicaraguan Government thus evades the positive and indisputable fact that that pact and the one that gave rise to the complaint are at bottom one and the same agreement and, as such, are impugned by Costa Rica on the authority of the Cañas-Jerez Treaty. Nicaragua also forgets that the abandonment of the Chamorro-Weitzel Treaty was not due to Nicaragua's lending herself to an effort towards the settlement through diplomatic channels undertaken in that year by Costa Rica; and she dodges the fact that she herself closed the road to any subsequent diplomatic settlement by her positive declarations that she could not reveal the terms of the canal treaty and that in negotiating the earlier pact she was proceeding in the exercise of her unquestionable sovereignty.
And persisting in the same reserve respecting the negotiation and terms of the Bryan-Chamorro Treaty to such point that the Costa Rican Government had no notice of it until it was wholly impossible to prevent its definitive consummation, any further efforts towards direct settlement would have been useless, besides being unbecoming on the part of a republic that had been so emphatically and positively repulsed in the efforts it put forth to be recognized as an interested party in the transaction.
That being the case, and the Costa Rican Government not having ceased to oppose the conclusion of the canal treaty in quarters where its efforts had not been repulsed, it is illogical to claim - as the Nicaraguan Government has claimed — that the Costa Rican Government, by not pursuing its steps towards direct settlement, initiated in 1913, must be held to have withdrawn its opposition.
The Court which, according to the convention that gave it life, represents the conscience of Central America, believes that it has acted in strict justice in holding concretely that the negotiations of 1913 and 1915 entered into by Nicaragua respecting an interoceanic canal (one broken off and the other consummated) are two steps of a single transaction that is impugned by Costa Rica, and that, consequently, the diplomatic moves towards a settlement, initiated in 1913, for the breaking off of which she was in no way to blame, had the desired effect, with respect to the Bryan-Chamorro Treaty, in giving to the Court the competency indispensable to the cognizance of the cause when the controversy was brought before it.
The contradiction which the Nicaraguan Foreign Office believes to have found between the act of May 1st that admitted the complaint of Costa Rica and that of September 6th that admitted the complaint of El Salvador, is only seeming contradiction, for the Foreign Office, for the purpose of demonstrating its assertion, reproduces only the citation of an interpretation made by the Court in 1908 in deciding the complaint of Honduras, and omits the reasons assigned in the preamble to which it pertains.
The citation had for its object to show that, according to the precedent adopted by the Court in 1908, and according to provisions of the Rules of Court and Ordinances of Procedure that interpret and make applicable Article I of the convention, the Court must "judge in each case that comes before it whether the complainant state has or has not taken steps through diplomatic channels, since it is not possible to apply a fixed and inflexible criterion in all classes of matters."
The citation was also intended to show that Article I of the convention does not establish the unalterable condition that steps of the kind mentioned must be undertaken and exhausted; but this must not be taken as indicating that the Court holds in the case of Costa Rica's complaint that such steps were not necessary, for the case there presented was not one of "war declared or in operation," such as is provided for in Article 17 of the Rules and 6 of the Ordinance.
The principal ground on which rested the admission of Costa Rica's complaint, according to the act of May 1st, is to be found in the preamble, paragraph 4, which reads as follows: “That with reference to the requirement that the states must resort to diplomatic parleys or discussions, as prerequisites to judicial action, to the end that an amicable settlement may be reached, the Court finds, from the facts so far presented, that the requirement has been fulfilled," and the Court thereupon proceeded forthwith to set forth its reasons for that declaration.
The act of September 6 that admitted the complaint of El Salvador, says in substance: That clause I of the convention fixes the jurisdiction and competency of the Court with no other limitation than that the foreign offices of the governments in controversy must have failed to reach a settlement; and that from the clear and positive reasons set forth in the conclusion of the Nicaraguan Foreign Office's answer to that of El Salvador, it deduces the fact that such settlement was impossible; therefore there can be no doubt that the complaint lies within the jurisdiction and competency of the Court.
That, then, is the basis for the contradiction imputed to the Court by the Nicaraguan Foreign Office when it says that "the Court under the pretext of that pretended unrestricted power, has not hesitated to make two diametrically opposite interpretations of Article I of the convention referred to, in order to decide always against Nicaragua in cases of the same nature”?
Furthermore, Article XXII of the convention, so frequently mentioned here, confers on the Court the power to determine its own competency; and that power like a wall erected by the law about the parties that appear before the Court to prevent them from withdrawing themselves from the effects of its decisions — cannot be disputed by them, nor can they refuse to respect it without in fact being guilty of a default in the obligations contracted in the above mentioned international pact.
The Nicaraguan delegates to the Conferences of Washington, commenting on Article XXII above cited, make the following statements in the report to which reference has hereinbefore been made:
It might happen that one or more of the contending parties, not wishing to submit to the judgment of the Court a matter comprehended in the convention, or not wishing to comply with the decision that might be rendered, would object to the competency of the tribunal to take cognizance of that matter, or would allege extra limitations of powers. This contingency is made impossible by Article XXII which gives the Court the power to decide as to its own competency, to interpret treaties and conventions pertinent to the matter in controversy and to apply the principles of international law. So that, when the Court shall have declared its competency the obligatory character of its decisions cannot be denied.
To claim that the Court, in rendering its decision in strict conformity with existing treaties and the principles of international law,
has affronted Nicaragua, is to make a statement that cannot be passed over unnoticed. That country, as is the case with the rest of Central America, constitutes a moral entity that impressed itself upon the respect and sympathy of this Court, the very life of which rests precisely in the noble hope that the countries that brought about its institution may live always in peace and harmony to the end that the ties of confraternity that united them may be drawn tighter and that it may be possible in the future to see the five flags symbolizing our country and sovereignty combined in a single standard, as they were in an earlier day.
Any effort that might tend to widen the differences between those peoples would be far removed from a labor of patriotism. The people of Costa Rica and Nicaragua have not engaged in any controversy. It is merely that their respective Governments have set up a legal question which the Court is called upon to solve in honorable and just judgment. The vehemence, then, of the language used by His Excellency the Minister of Foreign Relations of Nicaragua does not comport with his expressed aspirations for peace and concord, much less with the unavoidable duty that is imposed upon that Government to respect and abide by the decision of this Central American Court to which has been entrusted without reservation of any kind a high function of resolving the differences that arise with brother governments.
That decision must be complied with. The honor of Central America and the prestige of her institutions demand it. If compliance is withheld, this singular and unprecedented contumacy of the Nicaraguan Government must lie as a pall upon the faith and confidence that have been heretofore the inspiration of our public treaties. The justices of this Court are at peace in their own minds. They have fulfilled their duty and now trust that Your Excellency will acknowledge the rectitude of their act; and as a recompense for having lost the confidence of His Excellency the Nicaraguan Minister of Foreign Relations, they hope to continue in the enjoyment of the Central American national esteem.
The Court is loath to close this brief statement without an expression of regret that the Government of Nicaragua should have made the charge — wholly destitute of truth though it be — that it urged in vain upon the Court the fulfillment of its international obligations born of the Treaties of Washington; for this office has