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Behind this apparent agreement was the hidden intention of, in the long term, disrupting the political purpose that each of the allies suspected in the others. Paranhos, satisfied with obtaining this first result, and with reconstituting the Republic of Paraguay, which he would spend two years working on, returned to Rio de Janeiro to take part in legislative affairs, once again occupying his role as Minister of Foreign Affairs (September 1870). Such was the status of Paraguay and the allies when, on July 12th, Nabuco delivered his speech against the right of conquest. Referring to a memoir published in Colombia in 1869 by Quijano Otero, national librarian, and analyzing the basis of the complaints which neighboring peoples formulated against the empire, he maintains the thesis that our policy should not be inspired by absolute principles, but rather by transaction:
“In the memoir about which I have told you, I see, as a synthesis of the complaints against Brazil, the following: the republics wish to have their treaties based on uti possidetis, which they consider legal—that is, based on treaties between the crowns of Spain and Portugal—while Brazil sets uti possidetis de facto as the essential basis of its pacts—that is, based on occupation. Senhores, in this matter one cannot strictly adhere to a principle, because all principles should change in accordance with the circumstances of each state. And if we want to stick to a principle, we must transform our entire approach, because it will be useless to think of treaties.
“Senhores, in diplomacy or in politics, an absolute principle is a fatal thing. See how happy England is. It owes this to the fact that its patriotism is not locked within a principle, neither in politics nor diplomacy: logic is the enemy of one and the other, because both are debatable. The absolute principle of legitimacy which Talleyrand maintained at the Congress of Vienna, because he was committed to Saxony’s cause and the dethroning of Murat, King of Naples, endangered the interests of other nations, and of France especially.
“I believe, then, that we should not lock ourselves into an absolute principle in order to negotiate treaties with our neighbors. I desire an open doctrine, without absolute principles, with a transactional spirit.
“We possess such vast territories that surely we can cede unpopulated terrains, swampy and uncultivated, which do not serve us at all, but which can service our neighbors.
“There lies in this, senhores, a great idea: that of inspiring trust in the peoples that surround us and denying before the world the ambitions of conquest which they attribute to us. The disgrace of slavery is enough without adding others.”
He passes then to fixating on Paraguay in its relations with the Alliance:
“That open doctrine which I desire, and which the country no doubt desires as well, that doctrine which should give us the trust of our neighbors and the sympathies of the civilized world, I cannot expect it from the July 16th ministry (1), after the words spoken by the worthy Minister of Foreign Affairs” (Cotegipe, then interim minister) “in the other Chamber, words already criticized in this one by my worthy friend the Senator from Bahia.” (Zacharias.)
“True, senhores, if we had fought the Paraguayan War for the sake of borders, if we had spent Brazilian blood and Brazilian capital to acquire some swampy terrains on the Apa, the spirit of conquest attributed to us would be left clear; the more capital and Brazilian blood consecrated to satisfy that spirit, so much the more excessive and audacious it would be.
“The worthy Minister of Foreign Affairs has said before the other Chamber: ‘Having fought the war for such issues [borders], we should resolve these issues in justice and according to our right, sanctioned by the victory of our arms.’ Now, senhores, the explanation the worthy Minister of Foreign Affairs gave with these words is not satisfactory. These words cannot have any meaning other than exactly what they sound like. Only an errata, only their suppression can save the mission of the minister who spoke them, unless the words may at some point serve as example of the exact opposite of what we mean to say.
“I heard, with the benevolence that comes from the friendship I have with H.E., and the admiration that his talent inspires in me, H.E.’s explanations; but they seem to me insufficient.
“H.E. said,” he reads, “I declared before the Chamber of Deputies that the goal of restoring our honor was, without a doubt, the Paraguayan War’s determinant cause; but I ask the worthy senator: for what reason did López provoke us? It is evident that his conduct’s motive was the matter of borders …
“Why resort to López’s intentions and conduct to explain our intentions and conduct? Simply because López sought a pretext for the war, must we recognize that pretext as true? What do López’s motives have to do with us?
“Senhores, in honor of our national character, it must be said that the defensive war we maintained against Paraguay, completely transfixed, with so many sacrifices, was not provoked by the question of borders.” (Assent.)
“We could not have sacrificed so much blood and so much money for that purpose, nor could we have turned this war into a duel with López …” (Senhor Zacharias: Because of territory.) “Because of territory! The motives for the war were those of the alliance.
“Let us see them in the treaty:
“Behold their explanation. ‘Persuaded that peace, security, and prosperity are not possible in the respective nations while Paraguay’s current government exists, and that the disappearance of said government is an imperative necessity demanded by the highest interests, respecting the sovereignty, independence, and territorial integrity of the Republic of Paraguay,’ and so on and so forth.
“The question of borders, senhores, was an incidental question; it was not the determinant cause of the war.” (Assent.) “Article 16 of the treaty is quite clear. ‘To avoid the wars and discord which questions of borders usually bring with them, it is stipulated that the allied governments will demand from Paraguay the completion of definitive treaties on borders …’ stricter still is the 6th article: ‘The allies are solemnly committed to not lay down arms until the current government of Paraguay has been destroyed.’ See how the question of borders was not the cause of the war …” (Senhor Zacharias: Seconded. Neither directly nor indirectly.)
“The question of borders not being the cause of war, peace should not depend on this issue either. Borders should be the goal of partial treaties with the allied powers, not of the general treaty, in which nothing should figure but the question of navigation of rivers, and other matters of international law.
“Because of this article 16 says: ‘The allies will demand that the government of Paraguay observe definitive border treaties with the respective governments.’
“Article 16 also says: ‘The allies are guaranteed reciprocally …’ This guarantee would be unnecessary if borders were the goal of the collective treaty, in which the signatories are all parties and not guaranteed; in which everything discussed remains subject to the sanctioning typical of collective treaties.
“Article 17 adds: ‘That in the event that one of the allies cannot obtain from the Paraguayan government etc., etc., … the others will actively employ their forces.’ These words prove that the pacts regarding borders are partial; that each of the allies must make its own, separately with Paraguay, under the other parties’ guarantee, and intervening with their forces in the event foreseen in art. 17. The contingency established in this article would be useless if borders had to figure in the collective peace treaty.
“This distinction conforms to the principle of sovereignty, because each nation is exclusively qualified to discuss and set its borders without the intervention of third-parties.
“Peace did not depend, consequently, on the determination of boundaries, and as such the definitive treaty does not depend on partial treaties that must resolve those problems either.
“Also in the Congress of Vienna, there was a general treaty, followed by particular treaties between the interested parties concerning the respective territories.
“Another concept from the worthy minister should not go unnoticed, namely: that Paraguay may not reject the borders indicated to it in the triple alliance treaty, because we are not going to negotiate on this issue, as we would with a sovereign nation in full use of its sovereignty.” (Senhor Zacharias: That’s good, that.)
“This opinion of the worthy minister, to my mind, is indefensible, not only given the principles, but also given the law agreed upon in the Treaty of the Triple Alliance.
“Senhores, wars end either with a peace treaty or with the submission of the defeated party. The Paraguayan War ended as was foreseen in the Treaty of the Triple Alliance; that’s to say, with a peace treaty, in which the sovereignty and integrity of Paraguay are respected. Let us see what, according to Heffter (2), the theory of peace treaties is. ‘Peace treaties,’ Heffter says, ‘are agreements by means of which two or more sovereign powers solemnly declare the hostilities between them terminated, without one remaining subordinated to the other.’
“Here is what distinguishes a peace treaty from subordination, deditio. ‘All the rules of public negotiations, in general, are applicable to peace treaties.’
“Given this doctrine, which other authors subscribe to as well, can the worthy Minister of Foreign Affairs’ own doctrine be permitted, that doctrine of sovereignty and half-sovereignties, sovereignties that are not sovereign?
“The truth is, senhores, that when a war ends with a peace treaty in which a territorial concession is not consigned, when the military occupation ends, the territory returns to the party that possessed it before the hostilities, just as it existed before, and with no more damage than is naturally caused by those hostilities.
“This is what is happening with Paraguay, whose sovereignty, integrity, and independence the Treaty of the Triple Alliance guarantees, excluding any idea of conquest or territorial concessions. The question of borders does not imply the yielding of territory; it predates the war, it depends on pre-existing law, and it is not based on the war’s effects. As I already proved, peace does not depend on border disputes, which would have been resolved without war as well.” (Senhor Paranaguá: There is no conquest.)
“Let us move to conventional law. This is as clear as can be.
“The treaty says:
“‘Ensuring that that government disappear is of imperative necessity, respecting the sovereignty, independence, and territorial integrity of the Republic of Paraguay.’
“It is clear, then, that the Triple Alliance committed itself to maintaining that sovereignty, independence, and territorial integrity, making no distinction between victor and vanquished.
“But the noble minister has said: the war we waged against the Paraguayan government, we in fact waged it against the Republic of Paraguay; because this republic, either by free will or by coercion, has supported the dictator. This distinction is not new in history. The same thing happened to France in the war of the allies against Napoleon. The allies declared that they had not been fighting against the French nation, but against Napoleon, whose government was incompatible with peace in Europe. But it was France who suffered the greatest consequences of the war.
“I cannot, senhor President, permit this theory, which the worthy Minister of Foreign Affairs sets forth, either, because it enshrines the use of bad faith in treaty negotiations. With this theory we could promise everything when negotiating, and then fulfill only what we wish to.
“And what comparison can there be, senhores, between our definitive peace treaty with Paraguay and the European peace of 1815?
“The Senate knows quite well that the Congress of Vienna not only aimed to obtain peace in France, but also—similar to the congresses of Westphalia and Utrecht, and on an even greater scale than those—it was concerned with standardizing international law in Europe, in accordance with the famous doctrine of equilibrium, from which the reconstruction of nationalities and the demarcation of borders was worked out. Now; this being so, we know that France, the greatest bugbear of this doctrine, had to suffer, as it did suffer, losing all its conquests and seeing its borders reduced to those it had before 1792.
“But France was not the only nation that suffered the despotism of the Holy Alliance, that is, of the four dominant powers at the Congress of Vienna. The whole map of Europe was retouched; many nations saw their borders redressed, and some, like poor Poland, were even eliminated.
“Now: what relation exists between this great event, the Congress of Vienna, and the issue of Paraguay? This comparison with the Congress of Vienna, does it mean that the allies believe themselves vested with powers analogous to those of the Holy Alliance, in order to assault Paraguay’s integrity and even its independence?
“The Treaty of the Holy Alliance protests against this; this century is not one of conquest; that time has passed …
“But the worthy Minister of Foreign Affairs invoked the law of the victor, saying before the Chamber of Deputies: ‘Paraguay may not resist the redressing of its borders, because that is the law of the victor.’ These words from the worthy minister were even more inappropriate than those that Alexander of Russia directed at Talleyrand:
“‘If you are offended, with myself relying on all the powers’ votes, let us go to war. I have 200,000 men in Poland; come take it from me.’
“But, senhores, France was not annihilated, as Paraguay was; and the haughty Talleyrand could respond: ‘France does not wish for war, but does not fear it; we have 100,000 men, and we will gather 200,000 more.’ Can the unfortunate Paraguay say the same, in the state it’s in? Alexander II pronounced those words in a conversation with Talleyrand, during the Congress of Vienna; but the words of the worthy minister were said before Parliament, and because of that I believe them even more inappropriate.” (Assent.)
“In truth, senhores, no one can doubt the victor’s influence over the defeated party. When one deals with the other, as in the present case Brazil deals with Paraguay, and when (as is happening in this case as well) the victor occupies a portion of its adversary’s territory, it works influence over it, unavoidably. But, senhores, it is also true that there are things which are done, but not said.
“Although war has influenced international law, no one, except Proudhon, has dared to legitimize the right of force. Thus, my complaint about the words the worthy minister has pronounced before Parliament.
“There is much we can do, thanks to that victor’s influence which we exercise over Paraguay; but it is best not to remove the peace treaty’s moral force, by supposing that it is borne from that influence. We should not provide new weapons to be used against us by those who suspect we are driven by ambitious projects of conquest, nor engender a resentment of that pact in the Paraguayan people.”
Nabuco’s ideas are even better defined as they appear in the following passage from his speech on 2 August 1870, which Rio Branco later read in the senate, utilizing it for his defense:
“But the worthy Minister of Foreign Affairs also insisted on a point I already discussed in my first speech; to wit: that Paraguay could not refuse to accept the borders indicated by the triple alliance treaty, from which H.E. concluded that the issue between himself and us was only one of words. Senhores, the problem is not words: between what the worthy minister wants and what we ourselves want there is an abyss; the abyss that separates law from violence.
“We have said and we are saying that Paraguay may deny its approval of boundaries indicated to it: 1st, because the Paraguayan War ended not by Paraguay’s total submission, but by a peace treaty. Now; peace treaty means signatory parties, and signatory parties means legitimate parties, with liberty and conscience; 2nd, because Paraguay is a sovereign power, and we made a commitment, before the civilized world, to respect its sovereignty: there is no middle ground, sovereignty doesn’t exist, nor can it exist, from the moment that one party avails itself of the other’s territory without its consent, against its will; 3rd, because in addition the triple alliance treaty was a pact made between the alliance powers, without Paraguay’s intervention, of the kind which in juristic language are known as inter alios, and which lack, as such, force to oblige the power who was not involved in it; 4th, because art. 17 of the triple alliance treaty grants Paraguay the right to reject those borders.
“But senhor minister has said: ‘What consequences would the senators’ policy have? The withdrawal of our troops, leaving the matter undecided, leading to a return to armament!’ Senhor president, this great difficulty in which the worthy minister finds himself is a product of his belief that this matter cannot be resolved except by force; for him there is no middle ground: either the borders allocated in the treaty, or war. Is there no room for mediation, arbitration, or even recusing ourselves from our role?
“The opposition’s thinking is this: Paraguay can refuse to accept the limits sketched out, because that is within its rights, exercising the sovereignty that we offer to maintain; but if resorting to force, if applying the law of the victor, invoked by the worthy minister, we impose borders on Paraguay, whose territory we still occupy, borders that it does not accept, the opposition will disapprove of such conduct and will consider the treaty null, because there is no greater possible cause for nullity in treaties than having one of the signatory parties lack freedom. In this event, the opposition will see what has happened not as the recognition of a law, but rather as an act consummated by the way of the world, as the weak nation has no recourse against the strong.”
1. That is, the Itaboraí ministry, a conservative ministry which held power from 16 July 1868 to 29 September 1870.
2. August Wilhelm Heffter, German law scholar and author of Das europäische Völkerrecht der Gegenwart [European International Law of the Present].