19 December 1908

 

CENTRAL AMERICAN cOURT OF JUSTICE

 
 
 

Honduras

Nicaragua

v. 

Guatemala

 

El Salvador

 
 

Final Conclusions and Award

 
BEFORE: JUDGES: José Astúa Аguilar; Salv. Gallegos; Angel M. Bocanegra; Alberto Ucles; José Madriz.
 
Applicant(s): Honduras, Nicaragua
Respondent(s): Guatemala, El Salvador
      
Perma Link: http://www.worldcourts.com/cacj/eng/decisions/1908.07.13_Honduras_v_Guatemala2.htm
Citation: Honduras v. Guatemala, CACJ, Final Conclusions & Award of 19 December 1908, 3 Am. J. Int’l L. 729 (1909)
Editor's Note: Reproduced with permission from ASIL/AJIL. The American Journal of International Law, Vol. 3, No. 2 (Apr., 1909), 434-436; Vol. 3, No. 3 (Jul., 1909), 729-736. © 1909 The American Society of International Law
 

  

[CONSIDERANDOS]

Final Conclusions and Award

CHAPTER I.

The Court bears in mind, as regards the plea of inadmissibility of the complaint as entered by the representative of the Guatemalan government under the allegation that article I of the convention creating this court was violated:

1. That the theory on which said party wishes to base its plea would lead to the rejection, on the grounds of illegality, of any complaint not accompanied by proof that negotiations looking to a settlement between the respective foreign offices had been begun and concluded without success; we say begun and concluded, because if the requirement were confined to the mere beginning of conciliatory efforts, pending which a complaint were admissible, the objection would lose all its force.

2. That such a view of the matter finds no foundation either in the wording of the law, or much less in a correct interpretation of its spirit, which, in accordance with the principles governing the interpretation of international compacts, should be investigated with a view to deducing from its purport the consequence most in conformity with the order of ideas and interests to which it corresponds and most in conformity with the purpose of maintaining the full efficacy of the provision itself and as related to the remaining articles of the treaty. [p730]

3. That the phrase “in case the respective foreign offices should have been unable to reach an agreement,” is far from entailing as a corollary the imperative precept that efforts in this direction must be begun and concluded in every case; for apart from the fact that there would thus be excluded, to the detriment of Central American peace, those claims in which this condition was impossible of fulfillment, we must observe that the certainty of not being able, that is, of the real or moral impossibility of reaching an amicable agreement, does not always and solely exist as the result of unsuccessful endeavors, but is usually the result of circumstances which render it necessary at once to characterize such steps as useless, inadmissible, or perhaps dangerous, and therefore to desist there-from; for instance, if the honor of a nation were involved or a rupture of hostilities should occur by reason of a cessation of relations. And we must suppose that the high parties signing the convention thought thus, for the reason that they did not use the formula “in case the respective foreign offices should have begun and concluded negotiations for the purpose of reaching an agreement,” or some other explicit mode of expression, instead of the one adopted.

4. That the function assigned to this court by article XVIII ibid., of arresting the course of an armed conflict by determining, from the very moment a claim is filed, the situation in which the contending governments are to remain pending the rendition of an award, presupposes the right to have recourse to the court without delay in matters of urgency, as occurred in the case under consideration, and if we accepted the above mentioned view of the matter the humanitarian and unquestionably utilitarian purpose for which this important article was inserted would be essentially frustrated, the article being reserved perhaps for emergencies of minor risk and significance or converted perhaps into a simple expression of wish.

5. That this error becomes obvious, moreover, if we observe that it would often shut off the nations from the path of judicial controversy, compelling them to accept war or humiliation as the only alternatives.

6. That the object of the reservation contained in the article under discussion is to hold intact the right of the nations to settle their controversies by amicable agreement notwithstanding their pledge to submit them to the court, but its purpose is not to lay down an inviolable rule that negotiations to this end must be made and exhausted, and if we construe its text in this manner there are no grounds upon which the plea in question can be sustained. [p731]

7. That the construction placed upon the aforesaid reservation in the preceding paragraph is further supported by the text of article I of the General Treaty of Peace and Amity signed at the same time as the convention cited, in which article is also embodied the agreement of the signatory republics to submit to this court all their differences of whatsoever nature, and nevertheless the necessity or expediency of first endeavoring to procure an agreement between the respective foreign offices is not even hinted at.

CHAPTER II.

With regard to the plea of insufficiency of the complaint, entered by the same party in the belief that article XIV ibid, was violated because the plaintiff failed to accompany his complaint with the proofs of his charges, we take into account:

1. That, as stated in chapter V of the first part of this award, after the complaint was communicated to the high defendants the said proofs were transmitted to them separately as soon as the period within which they were to answer had begun, and as a matter of fact these proofs formed the subject of an extensive and particular discussion on the part of the representative of the Guatemalan government in his written reply and defense.

2. That this second plea can also not be admitted for the reason that, since the ends of justice sought to be satisfied by the said article are accomplished, the plea under discussion is without foundation, and because the party making the objection accepted the suit in this form and answered the charge, referring to all its points and the proof supporting it.

CHAPTER III.

In the complaint both the charges on which the suit is based are directed against the governments of El Salvador and Guatemala without making any distinction between the two high contracting parties regarding the ultimate purpose of the suit, although a distinction is made with regard to facts which are distinguished and separated in the recital; and in order to lay down the premises of the award, the court, *** reaches the following conclusions:

1. That the records of the case do not show, even in the doubtful form of circumstantial evidence, a single act of support or aid lent to the conspirators by the said governments or by private parties with their [p732] authorization or tolerance, by virtue of which they would incur direct or indirect liability for violation of their neutrality, in the incident which gave rise to this suit; and it must be noted that the only fact that could be cited in this connection against the Salvadorean government (the aid afforded the faction, by means of their personal cooperation, by Lee Roy Cannon and the emigrants Augusto C. Coello and associates, who departed from its territory), could not be charged against it for the aforementioned purpose either in accordance with the general principles of international law *** or according to the provisions of the General Treaty of Peace and Amity concluded at Washington, or much less in conformity with the declaration embodied in the protocol of the San José Conference, referred to above.

2. That moreover the evidence in the case does not warrant the assertion that such liability arose from a lack of due diligence on the part of the defendant governments in adopting and enforcing the necessary measures to prevent the crime, for the contrary is gathered from all the evidence adduced in the suit. From this standpoint the very recital of the plaintiff excludes the Guatemalan government from such liability by not charging it with any specific act, positive or negative, which would place it under this head of the indictment; and as far as the other high defendant is concerned, only two facts are worthy of discussion, namely, the failure of the prosecution of the aforementioned emigrants and the flight of Lee Roy Cannon from San Miguel where he held the office of Chief of Police, for the purpose of joining the insurrectionist party; but the documents in the case lead to the conviction that the chief executive of the republic of El Salvador, personally and through the authorities under him, exercised, both before and after July 5, all the vigilance that could reasonably be expected from the administrative authorities of the country, in order to prevent the departure of persons who, owing to their political affiliations in Honduras, might be attracted by the scheme of the conspirators, whereas the action taken by the Honduran officials was deficient in this regard; the documents also show convincingly that the flight of Cannon from El Salvador, where he had committed embezzlement and was implicated in the faction, without either the consent or tolerance of the government, can in no wise involve the responsibility of the latter. In this manner there arises in its favor a presumption of honesty and good faith sufficient alone to shield it, if the charge were not further effectively counteracted by the [p733] circumstance that the Honduran government contributed toward its own injury by a lack of precautionary effort. ***

3. That it can also not be asserted that there was a culpable lack of diligence on the part of the said government because the aforementioned Hondurans had not been arrested and prosecuted at the date of the complaint and escaped from the measures of " concentration " although their seditionary purposes were already known, which question is at once referred to article XVII of the treaty, which is cited by the author as the basis for this chapter of his complaint. The second point has already been treated in the preceding paragraph; with regard to the first point it must be remarked that the obligation assumed by the signatory governments by virtue of the stipulation contained in this article, which is nothing else than a confirmation of a universally recognized international duty, makes it incumbent upon them subject to trial in accordance with their positive law, that is, according to their penal laws and code of procedure any person who begins or foments revolutionary activity against either of them; that the penal code of the republic of El Salvador punishes the consummated crime, the frustrated crime, and the attempt, but not the mere preparation of an unlawful act, and, restricting the repressive power of the law with regard to the last-named imperfect form of the offense, it declares that the proposition and conspiracy are only punishable in the cases expressly indicated by the law, among which are not included violations of neutrality, this being the stand taken on the subject by the penal code of Honduras also; that consequently, even supposing it to be proven that the revolutionary plot had assumed the legal character of a conspiracy, the Honduran officials, owing to a lack of authority, were not under obligation to commence action against the aforementioned persons or to order their formal imprisonment, for which very reason they were obliged to confine themselves, in carrying out the Treaty, to " concentrating" and keeping watch of the suspects through the police authorities to the extent permitted by the laws; that in accordance with the foregoing, the presumption of good faith in favor of the government of El Salvador is not affected in this instance, since it is certain that such presumption is not destroyed by the fact that there were not exercised, for the sake of fulfilling the duties of neutrality, repressive or restrictive measures against individual liberty incompatible with the rules of Salvadorean public law. *** [p734]

4. That it would not be admissible in the present controversy to invoke the obligation incumbent upon every nation to provide laws and institutions for its internal administration which shall render it practically capable of repressing within its territory acts which are injurious to the other members of the international commonwealth, and to be responsible, therefore, for every defect arising from deficiency in the laws, for the penal code and the code of preliminary criminal procedure of the republic of El Salvador, in this part as well as in the remainder of its text, are based on the same principles which govern liability to punishment in the nations in and outside of Central America, and answer the requirements of a civilized people. ***

5. That the negative conclusion resulting from the considerations above set forth with regard to the assertion of a culpable lack of diligence must be applied to the same charge as made against the government of Guatemala, for all the more reason since neither the complaint nor the evidence presented relate any circumstance which merits the special study and examination of the court.

6. That on account of what has been said it is just to declare also that no grounds are found among the records of the case for admitting that in this form the high defendants incurred, with respect to the revolutionary movement which occurred in Honduras, the responsibility with which they have been charged by the high plaintiff.

Whereas:

The proceedings in the present suit having been considered to be terminated and the deliberations of the court on the various points to be sufficient, the presiding judge proposed the following set of questions to be voted upon in rendering the award which is to decide the controversy:

First: Should we admit the plea of inadmissibility of the complaint as entered by the representative of the Guatemalan Government, under the allegation that the complaint was filed without exhausting the negotiations for an agreement between the respective Foreign Offices?
Second: Shall we admit the plea, entered by the same party, of insufficiency of the complaint to institute the suit owing to the circumstance that it was not accompanied by the evidence when the charge was originally notified to the opposite party?
Third: Is it demonstrated and should it be so declared, that the government of El Salvador violated article XVII of the General Treaty of Peace and Amity concluded at [p735] Washington on December 20, 1907, by not " concentrating " and subjecting to trial the Honduran emigrants who threatened the peace of their country ?
Fourth: Is it demonstrated and should it be so declared, that the government of El Salvador violated article II of the Additional Convention to the said treaty, by protecting or fomenting the aforesaid insurrectionary movement?
Fifth: Is it demonstrated and should it be so declared, that the government of El Salvador contributed towards the accomplishment of said political crime through a culpable lack of diligence?
Sixth: Should the action begun against the government of El Salvador be consequently declared lawful and the latter therefore sentenced to pay the damages asked?
Seventh: Is it demonstrated and should it be so declared, that the government of Guatemala violated article XVII of the General Treaty of Peace and Amity concluded at Washington on December 20, 1907, by not " concentrating" and subjecting to trial the Honduran emigrants who threatened the peace of their country ?
Eighth: Is it demonstrated and should it be so declared; that the government of Guatemala violated article II of the Additional Convention to said treaty by protecting or fomenting the aforesaid insurrectionary movement?
Ninth: Is it demonstrated and should it be so declared, that the government of Guatemala contributed towards the accomplishment of said political crime through a culpable lack of diligence?
Tenth: Should the action begun against the government of Guatemala consequently be declared lawful and the latter therefore sentenced to pay the damages asked?
Eleventh: Should the losing party or parties be sentenced to pay the costs of trial?

Whereas:

Having weighed the evidence adduced by the high litigating parties with the freedom of judgment enjoined by article XXI of the aforementioned convention, the judges composing this court voted as follows on the eleven propositions contained in the foregoing paragraph:

The first was answered negatively by the five judges.
The second was answered negatively by the five judges.
The third was answered negatively by Judges Gallegos, Bocanegra and Astua, and affirmatively by Judges Ucles and Madriz.
The fourth was answered negatively by Judges Gallegos, Bocanegra, Madriz and Astua, and affirmatively by Judge Ucles.
The fifth was answered negatively by Judges Gallegos, Bocanegra and Astua, and affirmatively by Judges Ucles and Madriz.
The sixth was answered negatively by Judges Gallegos, Bocanegra and Astua and affirmatively by Judges Ucles and Madriz.
The seventh [p736] was answered negatively by Judges Gallegos, Bocanegra, Madriz, and Astua, and affirmatively by Judge Ucles.
The eighth was answered negatively by Judges Gallegos, Bocanegra, Madriz and Astua, and affirmatively by Judge Ucles.
The ninth was answered negatively by Judges Gallegos, Bocanegra, Madriz and Astua, and affirmatively by Judge Ucles.
The tenth was answered negatively by Judges Gallegos, Bocanegra, Madriz and Astua, and affirmatively by Judge Ucles.
The eleventh was answered negatively by Judges Gallegos, Bocanegra, Madriz and Astua, Judge Ucles answering that the governments of El Salvador and Guatemala should be sentenced to the costs.
Whereas:
The court refrains from sentencing any party to pay the costs of trial, both in view of the silence of the convention on the subject and because it considers that it lacks authority to do so because the interested parties made no request in regard to this point.

Therefore:

This Court of Justice, in the name of the republic of Central America, in the exercise of the jurisdiction conferred upon it by the Washington Convention of December 20, 1907, to which it owes its existence, and in conformity with the principles of international law and the positive rules before cited, pronounces the following


AWARD:

ARTICLE 1. The pleas of inadmissibility of the complaint and of insufficiency thereof to begin the action, as entered by the representative of the Guatemalan Government, are declared inadmissible.
ARTICLE 2. The governments of the Republics of El Salvador and Guatemala, the high defendants, are acquitted of the charges made against them in this suit and it is therefore declared that there are no grounds for holding them responsible as demanded by the high plaintiff, and no party is sentenced to pay the costs.

Jose Astua Aguilar.
Salv. Gallegos.
Angel M. Bocanegra.

The foregoing award was drawn up by the Presiding Judge Astua Aguilar, and is signed by only three judges, because Judges Ucles and Madriz refused to sign it.

Ernesto Martin, Secretary.

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