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a right denied by or inconsistent with international law lays, it is believed, the right to protest, and the right to protest is not postponed until the neutral has been injured. The very moment that the act of a belligerent violates the neutral right of any nation, it becomes, it is believed, the right of every neutral nation to protest, even although it may not be considered its duty to protest—although the undersigned believes that it is the duty of the neutral to protest in such a case because the violation of the right of any neutral nation is the violation of a right common to every neutral, and a claim to violate the right of one is in effect a claim to violate the right of any or all if the belligerent shall believe it to be to its advantage so to do. The material injury is, it is believed, the violation of the principle of law, not merely the injury to the life or property of the citizen of the neutral nation, because life and property depend upon the principle of law, and when this is withdrawn the guarantee of life and property falls with it.
The classic example of the protest of neutral nations whose rights were menaced, although the persons and property of their subjects were not injured, is the protest of France, Austria and Prussia in the case of the Trent. This well known case arose during the American Civil War. The Trent, a British and therefore neutral, vessel, was proceeding from Havana, Cuba, a neutral port, to London, England, a neutral port, and had on board Messrs. Mason and Slidell, Commissioners of the Confederacy to European countries. On November 8, 1861, the Trent was stopped by the American Man of War San Jacinto, under the command of Captain Wilkes, and Messrs. Mason and Slidell were taken off the steamer, which was allowed to proceed to its neutral destination. President Lincoln admitted that Captain Wilkes did not have the right to remove the Confederate Commissioners from the Trent, and returned Messrs. Mason and Slidell to British custody.
The case was, superficially at least, between the United States and Great Britain, but the admission by neutrals of the right of the United States to violate international law in the case of Great Britain was an admission that the United States could violate international law as regards other members of the society of nations. This admission Prussia, Austria and France were unwilling to make, and each of the three powers protested to the Government of the United States. The text of these protests is printed in full in the Supplement to this Journal, pp. 67–72.
JAMES BROWN SCOTT.
THE TREATY WITH NICARAGUA GRANTING CANAL AND OTHER RIGHTS TO
THE UNITED STATES
After three attempts within the last five years of the Government of Nicaragua to conclude a convention with the United States under the terms of which funds might be secured for rehabilitating the depleted financial and economic resources of the country, due principally to the civil wars and administrative abuses of the Zelaya régime, it now seems probable that Nicaragua's desire is about to be accomplished. February 18th last the United States Senate advised and consented to the ratification, with certain amendments which will be referred to later, of the convention signed on August 5, 1914, by Secretary of State Bryan of the United States and Emiliano Chamorro, the Minister of Nicaragua, granting to the United States in return for a money payment the right-of-way for the construction of an interoceanic canal through Nicaragua, the lease of certain islands in the Carribbean Sea, and the grant of a naval base on the Gulf of Fonseca. Information received from Managua indicates that the Nicaraguan Congress has ratified the convention, including the United States Senate amendments, so that all that remains to be done are the exchange of ratifications and the appropriation by the Congress of the United States of the sum of money provided in the convention to be paid to Nicaragua.
The first attempt of Nicaragua to secure relief for her financial distress was made when Mr. P. C. Knox was Secretary of State of the United States. On June 6, 1911, he signed a convention with Nicaragua which contemplated a loan from American bankers, to be secured on the customs of Nicaragua, which were to be collected and applied to the purposes of the loan by a collector selected by the fiscal agent of the loan and approved by the President of the United States. The convention followed in its general objects the Dominican Receivership Convention, although differing from it somewhat in details. The convention failed of ratification in the Senate and the subject was dropped by Secretary Knox.
In the summer of 1913 a second attempt was made while Mr. W. J. Bryan was Secretary of State, who laid before the United States Senate a convention which entirely eliminated the loan features of the Knox convention and provided for a direct money payment from the Government of the United States to the Government of Nicaragua in return for an option upon the Nicaraguan canal route, the lease of two small islands in the Caribbean Sea, and the grant of a naval base on the Pacific coast. It was generally reported and accepted at the time that the convention also included provisions similar to what is known as the Platt Amendment to the Cuban Constitution, which were subsequently embodied into a convention between the United States and Cuba concluded on May 22, 1903.2 The provisions of the Platt Amendment which might be applied to Nicaragua are to the effect that Cuba may not enter into any treaty with a foreign Power which will impair its independence or permit such Power to obtain control over any portion of the island, that it will not contract any public debt for the discharge of which the ordinary revenues of the island will be inadequate, and that the United States shall have the right to intervene to preserve Cuban independence and an adequate government.
1 The text of the convention of 1911 is printed in the SUPPLEMENT to the JOURNAL for that year, Vol. V, p. 291. An editorial comparing that convention with the Dominican Receivership Convention appeared in the October, 1911, JOURNAL,
When the provisions of the proposed treaty of 1913 with Nicaragua became known, they aroused considerable opposition in the other republics of Central America, and Costa Rica, Salvador and Honduras filed protests against the ratification of the treaty with the State Department and the United States Senate. The specific objections of these governments will be referred to later. The general objections were to the effect that the treaty would convert Nicaragua to all intents and purposes into a protectorate of the United States, and that such a relationship would make forever impossible the long-cherished union of the Central American republics under one government. The opposition of Central America found an echo in the United States and action toward the ratification of the treaty was postponed.
The subject was again revived in 1914 by the signature of the present treaty, from which all stipulations which may be considered as embodying the provisions of the Platt Amendment have been omitted. The treaty as now drawn is short and simple, granting to the United States in return for the payment of $3,000,000 the exclusive right to construct and operate an interoceanic canal through Nicaragua, the lease of Great and Little Corn Islands in the Caribbean Sea and the right to establish a naval base on the Gulf of Fonseca.
2 Malloy, Treaties, Conventions, etc., Vol. I, p. 362.
3 Regarding attempts to form such a union, see editorial in this JOURNAL for October, 1913, p. 829.
It is obviously not the intention of the Government of the United States to undertake the construction of another interoceanic canal so shortly after the completion of the canal at Panama and before the problem of keeping that canal open has been finally solved. The treaty with Nicaragua seems merely to be intended to give the United States an option upon possible canal routes through Nicaragua, so as to prevent any other Power from building a competing interoceanic waterway through the only other route apparently available for that purpose.
The preamble of the treaty recites the desire of the contracting governments "to provide for the possible future construction of an interoceanic canal by way of the San Juan River and the Great Lake of Nicaragua, or by any route over Nicaraguan territory, whenever the construction of such canal shall be deemed by the Government of the United States conducive to the interests of both countries.”
Article 1 of the convention contains a grant in perpetuity from Nicaragua to the United States of the exclusive proprietary rights necessary and convenient for the construction, operation and maintenance of such canal. The details of the terms upon which the canal shall be constructed, operated and maintained are left to be agreed upon in the future “whenever the Government of the United States shall notify the Government of Nicaragua of its desire or intention to construct such canal."
The preamble further recites the wish of Nicaragua to facilitate in every way possible the successful maintenance and operation of the Panama Canal, and to enable the United States to protect the Panama Canal and the proprietary rights granted in Article 1 of the present treaty, the Government of Nicaragua in Article 2 leases to the United States for the term of 99 years the two small islands in the Caribbean Sea known as Great Corn and Little Corn Islands. These islands are about 100 miles northeast of the mouth of the San Juan River, which would presumably be used as a part of the proposed canal, and about 300 miles northwest of Colon, the Atlantic terminus of the Panama Canal.
In further pursuance of the wish of Nicaragua to enable the United States to protect the Panama Canal and the rights granted in the present treaty, Nicaragua also grants to the United States in Article 2 the right to establish, operate and maintain for the same period a naval base at such place on the territory of Nicaragua bordering upon the Gulf of Fonseca as the Government of the United States may select. The Gulf of
Fonseca is an arm of the Pacific Ocean into which projects the extreme northwest corner of Nicaragua. Across the Gulf to the northwest lies Salvador and between Salvador and Nicaragua the shores of Honduras form the northeastern border of the Gulf. The Gulf of Fonseca is several hundred miles away from the western terminus of any canal which may be constructed by way of Lake Nicaragua and is about 600 miles west and about 300 miles north of Panama. Nevertheless, a naval base located there would seem to be of strategical importance, as it will afford an American base much nearer than any at present on the Pacific coast, from which to launch a flank attack upon any unfriendly naval demonstration directed against the Panama Canal from the Pacific side.
The foregoing leases and grants are subject to renewal at the option of the United States for a further period of 99 years, and the territory leased and the naval base granted shall be subject exclusively to the laws and sovereign authority of the United States during the terms of the lease and grant.
For these concessions, the United States agrees in Article 3 to pay to Nicaragua, upon the date of the exchange of ratifications of the convention, the sum of $3,000,000, United States gold. This money is to be deposited to the order of the Government of Nicaragua in such bank or banks as the Government of the United States may determine, and is to be applied by Nicaragua upon its indebtedness or, according to an amendment inserted by the United States Senate, to “other public purposes for the advancement of the welfare of Nicaragua in a manner to be determined by the two high contracting parties." The Senate amendment further provides that all disbursements from this fund shall be made by orders drawn by the Minister of Finance of Nicaragua and approved by the Secretary of State of the United States, or by such person as he may designate. Another amendment inserted by the United States Senate adds to the grant of the canal route in Article 1 the provision that it shall be “forever free from all taxation or public charge.”
While the elimination of the Platt Amendment provisions from the Nicaraguan treaty seems at least to have taken the edge from the assertion that the United States proposes to establish a protectorate in Central America, the stipulations retained in the treaty are still unsatisfactory to certain of the Central American governments.
Costa Rica claims that it is impossible to build an interoceanic canal in Nicaragua without affecting Costa Rican lands and waters and denies