|
[p.192]
The Court,
composed as above,
delivers the following Judgment:
On 1 July 1958, the Minister of Honduras in the Netherlands delivered to the
Registry on behalf of his Government an Application of the same date,
instituting proceedings before the Court with regard to a dispute between
the Republic of Honduras and the Republic of Nicaragua concerning the
Arbitral Award made by the King of Spain on 23 December 1906.
The Application relies on the Washington Agreement of 21 July 1957 between
the Parties with regard to the procedure to be followed in submitting the
dispute to the Court; the Application states, furthermore, that the Parties
have recognized the compulsory jurisdiction of the Court on the basis of
Article 36, paragraph 2, of its Statute.
In accordance with Article 40, paragraph 2, of the Statute, the Application
was communicated to the Minister for Foreign Affairs of Nicaragua. In
accordance with paragraph 3 of the same article, the other Members of the
United Nations and the non-member States entitled to appear before the Court
were notified.
Time-limits for the filing of the Memorial, the Counter-Memorial, the Reply
and the Rejoinder were fixed by Order of 3 September 1958; the time-limit
for the filing of the Rejoinder was later extended by Order of 7 October
1959. The case became ready for hearing on the filing of the last pleading
on 4 January 1960.
Dr. Roberto Ago, Professor of International Law at the University of Rome,
and Professor Francisco Urrutia Holguin, Ambassador of Colombia, were
respectively chosen, in accordance with [p 195] Article 31, paragraph 3, of
the Statute, to sit as Judges ad hoc in the present case by the Government
of Honduras and the Government of Nicaragua.
On 15, 16, 17, 19, 20, 21, 22, 23, 24, 27, 28, 29 and 30 September and on 1,
3, 4, 6, 7, 10 and 11 October i960 public hearings were held in the course
of which the Court heard successively the oral arguments and replies of M.
José Angel Ulloa, Agent, M. Paul De Visscher, M. Paul Guggenheim and Mr.
Herbert W. Briggs, Counsel, on behalf of the Government of Honduras, and M.
José Sansôn-Terân, Agent, Mr. Philip C. Jessup, M. Gaetano Morelli, M.
Camilo Barda Trelles, M. Antonio Malintoppi, Counsel, M. Diego M. Chamorro,
co-Agent, and M. Henri Rolin, Counsel, for the Government of Nicaragua.
In the course of the written and oral proceedings, the following submissions
were presented by the Parties:
On behalf of the Government of Honduras,
in the Application:
"May it please the Court:
To communicate the present Application instituting proceedings to the
Government of the Republic of Nicaragua, in accordance with Article 40,
paragraph 2, of the Statute of the Court, and Article 2 of the Agreement of
21 July 1957 between the Foreign Ministers of Honduras and Nicaragua;
To adjudge and declare, whether the Government of Nicaragua appears or not,
after considering the contentions of the Parties:
1. that failure by the Government of Nicaragua to give effect to the
arbitral award made on 23 December 1906 by His Majesty the King of Spain
constitutes a breach of an international obligation within the meaning of
Article 36, paragraph 2 (c), of the Statute of the International Court of
Justice and of gênerai international law;
2. that the Government of the Republic of Nicaragua is under an obligation
to give effect to the award made on 23 December 1906 by His Majesty the King
of Spain and in particular to comply with any measures for this purpose
which it will be for the Court to determine;
The Government of the Republic of Honduras reserves in a general way the
right to supplement and modify its submissions. In particular it reserves
the right to request the Court to indicate practical measures to ensure
compliance by Nicaragua with the judgment to be delivered by the Court";
in the Memorial:
"May it please the Court:
To communicate the present Memorial to the Government of the Republic of
Nicaragua, in conformity with Article 43 of the Statute of the Court; [p
196]
To adjudge and declare, whether the Government of Nicaragua appears or not,
after considering the contentions of the Parties:
1. that failure by the Government of Nicaragua to give effect to the
arbitral award made on 23 December 1906 by His Majesty the King of Spain
constitutes a breach of an international obligation within the meaning of
Article 36, paragraph 2 (c), of the Statute of the International Court of
Justice and of general international law;
2. that the Government of the Republic of Nicaragua is under an obligation
to give effect to the award made on 23 December 1906 by His Majesty the King
of Spain and in particular to comply with any measures for this purpose
which it will be for the Court to determine.
The Government of the Republic of Honduras reserves in a general way the
right to supplement and modify its submissions. In particular it reserves
the right to request the Court to indicate practical measures to ensure
compliance by Nicaragua with the arbitral award of His Majesty the King of
Spain.
Honduras reserves the further right to ask the Court to fix the amount of
reparation which Nicaragua shall pay to Honduras in conformity with Article
36, paragraph 2 (d), of the Statute of the Court";
in the Reply:
"May it please the Court:
Whether the Government of Nicaragua appears or not:
1. To reject the submissions of Nicaragua;
2. To adjudge and declare that failure by the Government of Nicaragua to
give effect to the Arbitral Award made on 23 December 1906 by His Majesty
the King of Spain constitutes a breach of an international obligation within
the meaning of Article 36, paragraph 2 (c), of the Statute of the
International Court of Justice and of general international law; and that
this non-execution involves a consequent obligation to make reparation;
3. To adjudge and declare that the Government of the Republic of Nicaragua
is under an obligation to give effect to the Award made on 23 December 1906
by His Majesty the King of Spain and in particular to comply with any
measures for this purpose which it will be for the Court to determine.
The Government of the Republic of Honduras reserves in particular the right
to request the Court to indicate practical measures to ensure compliance by
Nicaragua with the arbitral award of His Majesty the King of Spain";
at the hearings, as final submissions:
"May it please the Court:
I. To adjudge and declare that the Government of the Republic of Nicaragua
is under an obligation to give effect to the arbitral award made on 23
December 1906 by His Majesty the King of Spain. [p 197]
II. Furthermore, to place on record the reservation which the Government of
Honduras formulates in regard to its right to ask for compensation in
respect of the prejudice that has been caused to it as a result of the
non-execution of the said arbitral award.
III. To reject the submissions of Nicaragua.
The Government of Honduras will be able to give these submissions a final
character, to modify them or to supplement them after hearing the statement
of the opposing Party."
On behalf of the Government of Nicaragua, in the Counter-Memorial:
"May it please the Court,
Rejecting the submissions of Honduras,
I. To adjudge and declare that, without prejudice to what is said in
paragraph II, Nicaragua violated no undertaking in failing to execute the
decision of King Alfonso XIII, dated 23 December 1906, its Government having
pointed from the beginning to the obscurities and contradictions which made
this execution impossible and having expressed readiness to submit to
arbitration or mediation the disagreement between itself and the Government
of Honduras concerning the validity of the said so-called arbitral decision.
II. To adjudge and declare that the decision given by King Alfonso XIII is
not an arbitral award made in conformity with the Gamez-Bonilla Treaty of 7
October 1894, and thereby possessed of binding force:
because the above-mentioned treaty had expired at the time when the King
accepted the office of sole arbitrator, a fortiori when he gave his decision
described as 'arbitral';
because this 'arbitral' decision of King Alfonso XIII was given by him as
sole arbitrator in flagrant breach of the provisions of the Gamez-Bonilla
Treaty; because the impugned decision is vitiated by essential errors;
because by this decision the King exceeded his jurisdiction; because it is
not supported by an adequate statement of reasons.
III. To adjudge and declare that the so-called 'arbitral' decision is in any
case incapable of execution by reason of its obscurities and contradictions.
IV. To adjudge and declare in consequence that Nicaragua and Honduras are in
respect of their frontier in the same legal situation as before 23 December
1906.
V. To adjudge and declare in consequence that, as all phases of the
disagreement have not been settled by the Judgment of the Court, the Parties
are bound, in accordance with the agreement reproduced in the resolution of
5 July 1957 of the Council of the Organization of American States, to
conclude an additional agreement within a period of three months [p 198]
from the date of the delivery of the Judgment, with a view to submitting
forthwith the disagreement concerning their frontier to the arbitral
procedure provided by the Pact of Bogota";
in the Rejoinder:
"May it please the Court,
to reject the submissions of Honduras;
to find in favour of Nicaragua on the submissions which it made to the Court
in its Counter-Memorial";
at the hearings, as final submissions:
"Whereas, in its submissions at the hearing filed on 15 September i960, the
Government of Honduras asks the Court to adjudge and declare that the
Government of the Republic of Nicaragua is under an obligation to give
effect to the arbitral award made on 23 De-cember 1906 by His Majesty the
King of Spain;
Whereas binding force can obviously be attributed to the royal decision
invoked only if it in fact constitutes a valid award;
Whereas therefore, contrary to what was pleaded by Counsel for Honduras, the
Court, to be able to adjudicate on the submissions of that Party, must
necessarily first verify whether the document produced embodies an
instrument which in fact offers the consti-tuent elements of an arbitral
award and, if so, whether the said award is valid;
Whereas according to doctrine and to jurisprudence he who relies upon an
arbitral award in international proceedings as in private proceedings is
under an obligation to prove that the person or body giving the decision
described as an award was invested with the powers of an arbitrator and that
the said person or the said body really acted within the limits of the
powers possessed;
Whereas Honduras has not furnished such proof, whilst the contrary follows
from the facts of the case;
Whereas furthermore the acts and declarations of organs of Nicaragua, relied
upon by Honduras as recognitions or acquiescences rendering inadmissible the
enumeration of the causes of nullity specified in the submissions of
Nicaragua of 5 May 1959 have neither the signification nor the effect
attributed to them by Honduras;
Whereas moreover the omissions, contradictions and obscurities of the award
which were denounced from the very first by Nicaragua would suffice to
prevent the execution demanded;
For these reasons,
May it please the Court,
Rejecting the submissions of Honduras,
I. To adjudge and declare that the decision given by King Alfonso XIII on 23
December 1906 invoked by Honduras does not possess the character of a
binding arbitral award; [p 199]
II. To adjudge and declare that the so-called 'arbitral' decision is in any
case incapable of execution by reason of its omissions, contradictions and
obscurities;
III. To adjudge and declare in consequence that Nicaragua and Honduras are
in respect of their frontier in the same legal situation as before 23
December 1906;
IV. To adjudge and declare in consequence that, as all phases of the
disagreement have not been settled by the Judgment of the Court, the Parties
are bound, in accordance with the agreement reproduced in the resolution of
5 July 1957 of the Organization of American States, to conclude an
additional agreement within a period of three months from the date of the
delivery of the Judgment, with a view to submitting forthwith the
disagreement concerning their frontier to the arbitral procedure provided by
the Pact of Bogota."
***
On 7 October 1894 Honduras and Nicaragua concluded a Treaty —hereinafter
referred to as the Gamez-Bonilla Treaty—Articles I to XI of which are as
follows:
[Translation from the Spanish revised by the Registry]
"Article I
The Governments of Honduras and Nicaragua shall appoint representatives who,
duly authorized, shall organize a Mixed Boundary Commission, whose duty it
shall be to settle in a friendly manner all pending doubts and differences,
and to demarcate on the spot the dividing line which is to constitute the
boundary between the two Republics.
Article II
The Mixed Commission, composed of an equal number of members appointed by
both parties, shall meet at one of the border towns which offers the greater
conveniences for study, and shall there begin its work, adhering to the
following rules:
1. Boundaries between Honduras and Nicaragua shall be those lines on which
both Republics may be agreed or which neither of them may dispute.
2. Those lines drawn in public documents not contradicted by equally public
documents of greater force shall also constitute the boundary between
Honduras and Nicaragua.
3. It is to be understood that each Republic is owner of the territory
which at the date of independence constituted, respectively, the provinces
of Honduras and Nicaragua.
4. In determining the boundaries, the Mixed Commission shall consider fully
proven ownership of territory and shall not [p 200] recognize juridical
value to de facto possession alleged by one party or the other.
5. In case of lack of proof of ownership the maps of both Republics and
public or private documents, geographical or of any other nature, which may
shed light upon the matter, shall be consulted; and the boundary line
between the two Republics shall be that which the Mixed Commission shall
equitably determine as a result of such study.
6. The same Mixed Commission, if it deems it appropriate, may grant
compensations and even fix indemnities in order to establish, in so far as
possible, a well-defined, natural boundary line.
7. In studying the plans, maps and other similar documents which the two
Governments may submit, the Mixed Commission shall prefer those which it
deems more rational and just.
8. In case the Mixed Commission should fail to reach a friendly agreement on
any point, it shall record this fact separately in two special books,
signing the double detailed record, with a statement of the allegations of
both parties, and it shall continue its study in regard to the other points
of the line of demarcation, disregarding the above referred point until the
limit at the extreme end of the dividing line is fixed.
9. The books referred to in the preceding clause shall be sent by the Mixed
Commission, one to each of the interested Governments, for its custody in
the national archives.
Article III
The point or points of the boundary line which may not have been settled by
the Mixed Commission referred to in this Treaty, shall be submitted, no
later than one month after the final session of the said Commission, to the
decision, without appeal, of an arbitral tribunal which shall be composed of
one representative for Honduras and another for Nicaragua, and of one Member
of the foreign Diplomatic Corps accredited to Guatemala, the latter to be
elected by the first two, or chosen by lot from two lists each containing
three names, and proposed one by each party.
Article IV
The arbitral Tribunal shall be organized in the city of Guatemala within
twenty days following dissolution of the Mixed Commission, and within the
next ten days shall begin its work, which is to be recorded in a Minutes
Book, kept in duplicate, the majority vote constituting law.
Article V
In case the foreign Diplomatic Representative should decline the
appointment, another election shall take place within the following ten
days, and so on. When the membership of the foreign Diplomatic Corps is
exhausted, any other foreign or Central Amer-[p 201]-ican public figure may
be elected, by agreement of the Commissions of Honduras and Nicaragua, and
should this agreement not be possible, the point or points in controversy
shall be submitted to the decision of the Government of Spain, and, failing
this, to that of any South American Government upon which the Foreign
Offices of both countries may agree.
Article, VI
The procedure and time-limit to which the arbitration shall be subject, are
as follows:
1. Within twenty days following the date on which the acceptance of the
third arbitrator shall have been notified to the parties, the latter shall
present to him, through their counsel, their pleadings, plans, maps and
documents.
2. Should there be pleadings, he shall submit these, within eight days
following their presentation, to the respective opposing counsel, who shall
have a period of ten days within which to rebut them and to present any
other documents they may deem appropriate.
3. The arbitral award shall be rendered within twenty days following the
date on which the period for rebutting pleadings shall have expired, whether
these have been presented or not.
Article VII
The arbitral decision, whatever it be, rendered by a majority vote, shall be
held as a perfect, binding and perpetual treaty between the High Contracting
Parties, and shall not be subject to appeal.
Article VIII
This Convention shall be submitted in Honduras and in Nicaragua to
constitutional ratifications, the exchange of which shall take place in
Tegucigalpa or in Managua, within sixty days following the date on which
both Governments shall have complied with the stipulations of this article.
Article IX
The provision in the preceding article shall in no way hinder the immediate
organization of the Mixed Commission, which shall begin its studies no later
than two months after the last ratification, in conformity with the
provisions of the present Convention, without prejudice to so doing prior to
the ratifications, should these be delayed, in order to take advantage of
the dry or summer season.
Article X
Immediately following exchange of ratifications of this Convention, whether
the work of the Mixed Commission has begun or not, the Governments of
Honduras and Nicaragua shall appoint their representatives, who, in
conformity with Article IV, shall constitute [p 202] the arbitral Tribunal,
in order that, by organizing themselves in a preliminary meeting, they may
name the third arbitrator and so communicate it to the respective Ministers
of Foreign Affairs, in order to obtain the acceptance of the appointee. If
the latter should decline to serve they shall forthwith proceed to the
appointment of another third arbitrator in the manner stipulated, and so on
until the arbitral Tribunal shall have been organized.
Article XI
The periods stipulated in this Treaty for the appointment of arbitrators,
the initiation of studies, the ratifications and the exchange thereof, as
well as any other periods herein fixed, shall not be fatal nor shall they in
any way produce nullity.
The object of these periods has been to speed up the work; but if for any
reason they cannot be complied with, it is the will of the High Contracting
Parties that the negotiation be carried on to its conclusion in the manner
herein stipulated, which is the one they deem most appropriate. To this end
they agree that this Treaty shall be in force for a period of ten years, in
case its execution should be interrupted, within which period it may be
neither revised nor amended in any manner whatever, nor the matter of
boundaries be settled by any other means."
The Mixed Boundary Commission provided for in Article I of the Treaty met
from 24 February 1900 onwards and succeeded in fixing the boundary from the
Pacific Coast to the Portillo de Teotecacinte; it was however unable to
agree on the boundary from that point to the Atlantic Coast and recorded its
disagreement at its meeting of 4 July 1901. With regard to the latter
section of the boundary, the King of Spain handed down, on 23 December 1906,
an arbitral award—hereinafter referred to as the Award—the operative part of
which reads as follows:
[Translation from the Spanish revised by the Registry ]
"I do hereby declare that the dividing line between the Republics of
Honduras and Nicaragua from the Atlantic to the Portillo de Teotecacinte
where the joint Commission of Boundaries abandoned it in 1901, owing to
their inability to arrive at an understanding as to its continuation at
their subsequent meetings, is now fixed in the following manner:
The extreme common boundary point on the coast of the Atlantic will be the
mouth of the River Coco, Segovia or Wanks, where it flows out in the sea
close to Cape Gracias a Dios, taking as the mouth of the river that of its
principal arm between Hara and the Island of San Pío where said Cape is
situated, leaving to Honduras the islets and shoals existing within said
principal arm before reaching the harbour bar, and retaining for Nicaragua
the southern shore of the said principal mouth with the said Island of San
Pío, and also the bay and town of Cape Gracias a Dios and the arm or estuary
called Gracias which flows to Gracias a Dios Bay, between the mainland and
said Island of San Pío. [p 203]
Starting from the mouth of the Segovia or Coco, the frontier line will
follow the vaguada or thalweg of this river upstream without interruption
until it reaches the place of its confluence with the Poteca or Bodega, and
thence said frontier line will depart from the River Segovia, continuing
along the thalweg of the said Poteca or Bodega upstream until it joins the
River Guineo or Namasli.
From this junction the line will follow the direction which corresponds to
the demarcation of the Sitio de Teotecacinte in accordance with the
demarcation made in 1720 to terminate at the Portillo de 7'eotecacinte in
such manner that said Sitio remains wholly within the jurisdiction of
Nicaragua."
Following upon a series of exchanges between the two Governments, some of
which will be referred to later, the Foreign Minister of Honduras in a Note
dated 25 April 1911 brought to the notice of the Foreign Minister of
Nicaragua certain steps taken by Honduras in execution of the Award and made
a proposal relating to the demarcation of a certain part of the boundary
line in accordance with the concluding portion of the operative clause. In
reply to this Note, the Foreign Minister of Nicaragua, in a Note dated 19
March 1912, challenged the validity and binding character of the Award. This
gave rise to a dispute between the Parties.
Subsequently, the two Governments made several attempts at settlement by
direct negotiation or through the good offices or mediation of other States,
but these were all unfruitful. The good offices of the United States of
America in 1918-1920 did not succeed. The Irias-Ulloa protocol of 21 January
1931, negotiated directly between the two Governments, failed of
ratification. Nor was the joint mediation of Costa Rica, the United States
of America and Venezuela in 1937 productive of positive result. Certain
incidents between the two Parties having taken place in 1957, the
Organization of American States, acting as a consultative body, was led to
deal with the dispute with the result that on 21 July 1957, Honduras and
Nicaragua reached an agreement at Washington by virtue of which they
undertook to submit:
"to the International Court of Justice, in accordance with its Statute and
Rules of Court, the disagreement existing between them with respect to the
Arbitral Award handed down by His Majesty the King of Spain on 23 December
1906, with the understanding that each, in the exercise of its sovereignty
and in accordance with the procedures outlined in this instrument, shall
present such facets of the matter in disagreement as it deems pertinent."
The Foreign Ministers of Honduras and Nicaragua attached the following
statements to the Agreement as Appendices A and B thereto: [p 204]
"Appendix 'A'
STATEMENT OF THE MINISTER OF FOREIGN AFFAIRS OF HONDURAS ON THE POSITION OF
HIS GOVERNMENT IN RESORTING TO THE INTERNATIONAL COURT OF JUSTICE
Honduras is submitting to the International Court of Justice its claim
against Nicaragua that the Arbitral Award of His Majesty the King of Spain
handed down on 23 December 1906 be carried out, basing its stand on the fact
that the Arbitral Award is in force and is unassailable. Honduras has
maintained and continues to maintain that Nicaragua's failure to comply with
that arbitral decision constitutes, under Article 36 of the Statute of the
International Court of Justice and in accordance with the principles of
international law, a breach of an international obligation.
The foregoing reference to the position of Honduras in this proceeding is
only of a general nature and in no wise constitutes a definition or
limitation of the matter to be submitted to the Court, or a formula that
restricts in any way the exercise of the right that Honduras will maintain
in the action before the Court.
Appendix 'B'
STATEMENT OF THE MINISTER OF FOREIGN AFFAIRS OF NICARAGUA ON THE POSITION OF
HIS GOVERNMENT IN APPEARING BEFORE THE INTERNATIONAL COURT OF JUSTICE
Nicaragua, when it appears before the International Court of Justice, will
answer the claim of Honduras, presenting reasons, actions, and facts, and
opposing the exceptions that it considers appropriate, in order to impugn
the validity of the Arbitral Award of 23 December 1906, and its compulsory
force, and also invoking all those rights that may be in its interest.
Nicaragua has maintained and now maintains that its boundaries with
Honduras continue in the same legal status as before the issuance of the
above-mentioned Arbitral Award.
The foregoing reference to the position of Nicaragua in this proceeding is
only of a general nature and in no wise constitutes a definition or
limitation of the matter to be submitted to the Court, or a formula that
restricts in any way the exercise of the right that Nicaragua will maintain
before the Court."
***
By the Application instituting proceedings in the present case, Honduras
asks the Court inter alia to declare that Nicaragua is under an obligation
to give effect to the Award. This request was maintained in the final
Submissions presented by Honduras at the hearing.
In its final Submissions presented at the hearing, Nicaragua asks the Court
to reject the Submissions of Honduras and to adjudge and declare inter alia
that the decision given by King Alfonso XIII on [p 205] 23 December 1906,
invoked by Honduras, does not possess the character of a binding arbitral
award and that the so-called "arbitral" decision is in any case incapable
of execution by reason of its omissions, contradictions and obscurities.
Honduras alleges that there is a presumption in favour of the binding
character of the Award as it presents all the outward appearances of
regularity and was made after the Parties had every opportunity to put their
respective cases before the Arbitrator. It contends that the burden lay upon
Nicaragua to rebut this presumption by furnishing proof that the Award was
invalid.
Nicaragua contends that, as Honduras relies upon the Award, it is under an
obligation to prove that the person giving the decision described as an
award was invested with the powers of an arbitrator, and it argues that the
King of Spain was not so invested inasmuch as:
(a) he was not designated arbitrator in conformity with the provisions of
the Gâmez-Bonilla Treaty, and
(b) the Treaty had lapsed before he agreed to act as arbitrator.
***
In support of the first contention, Nicaragua has argued that the
requirements of Articles III and V of the Gâmez-Bonilla Treaty were not
complied with in the designation of the King of Spain as arbitrator. It has
urged that, before the two national arbitrators could proceed to this
designation, it was necessary to exhaust the membership of the foreign
Diplomatic Corps accredited to Guatemala and thereafter to attempt to come
to an agreement on any other foreign or Central American public figure for
the purpose of constituting a three-man arbitral tribunal.
The record shows that on 2 December 1899, the two national arbitrators
designated the Mexican Chargé d'affaires in Central America, Federico
Gamboa, as third member of the arbitral tribunal. In April 1902, he was
recalled from Guatemala. On 21 August 1902, the two national arbitrators
designated the Mexican Minister to Central America, Cayetano Romero, as
third member of the tribunal. He left Guatemala for reasons of health
without having accepted or rejected the designation. There is no record of
any proceedings taken by the national arbitrators thereafter for the purpose
of organizing the arbitration until 2 October 1904. On that date the two
national arbitrators, José Dolores Gâmez and Alberto Membreno, met in the
City of Guatemala with the Spanish Minister to Central America, Pedro de
Carrere y Lembeye, and, as stated in the Minutes of the meeting, "having
verified their full powers and with the express consent of their Governments
appointed the Spanish Minister to be the chairman of a meeting preliminary
to the arbi-[p 206]tration which is to consider and settle the pending
boundary question". At that meeting, "by common consent and the
requirements of Articles III and IV of the Gámez-Bonilla Treaty having
previously been complied with" (de común acuerdo y previos los trámites que
prescriben los artículos 3° y 4° del Tratado Gámez-Bonilla) the King of
Spain was designated as arbitrator.
It has been suggested that this mention of Article IV was by mistake in
place of Article V. Be that as it may, what was meant was that the procedure
laid down in the Treaty to be followed antecedent to the designation of the
King of Spain as arbitrator had already been complied with. In these
circumstances, an allegation that such was not in fact the case must be
established by positive proof. No such proof has been placed before the
Court.
In the opinion of the Court it was within the power of the arbitrators to
interpret and apply the articles in question in order to discharge their
function of organizing the arbitral tribunal. Whether they had in fact
exhausted the membership of the Diplomatic Corps accredited to Guatemala and
failed to reach agreement on the election of any other foreign or Central
American public figure or whether they had considered such steps as optional
and unlikely to lead to a fruitful result, the fact remains that after
agreeing that the relevant articles of the Treaty had been complied with
they agreed to proceed to the designation of the King of Spain as
arbitrator. The Court, therefore, concludes that the requirements of the
relevant articles of the Gámez-Bonilla Treaty as interpreted by the two
national arbitrators had already been complied with when, at the meeting of
2 October 1904, it was agreed by common consent that the King of Spain be
designated as arbitrator and that he should be requested on behalf of both
Governments to undertake the task.
On 4 October 1904, the Spanish Minister sent telegrams to the Presidents of
Honduras and Nicaragua stating that it had been agreed to designate the King
of Spain as arbitrator in the case.
On 6 October 1904, the President of Honduras expressed his satisfaction at
the designation of the King of Spain to decide the question of boundaries of
Honduras and Nicaragua, and expressed the hope that the King would accept
the task.
On 7 October 1904, the President of Nicaragua replied that it would "be
satisfactory and an honour for Nicaragua if H.M. the King of Spain will
accept the designation of arbitrator to settle the boundaries dispute
between Honduras and Nicaragua".
On 17 October 1904, the acceptance of the King of Spain was communicated to
the Spanish Minister in Central America, who immediately dispatched
telegrams to the Presidents of Honduras and Nicaragua informing them of the
King's agreement "to be the [p 207] arbitrator in the question of the
boundaries between Nicaragua and Honduras".
In his Note of 21 December 1904, addressed to the Spanish Minister of State,
the Foreign Minister of Nicaragua renewed in the name of his Government "to
His Majesty the King of Spain the expression of my deep gratitude for the
generosity shown" in accepting his "designation as arbitrator to settle the
question of boundaries between Nicaragua and Honduras".
In his Report to the National Legislative Assembly dated 30 November 1905,
the Foreign Minister of Nicaragua stated:
"At a meeting in Guatemala City in October 1904, under the presidency of His
Excellency the Minister for Spain to Central America, the moment came to
elect the third arbitrator who is to settle the affair definitively. His
Majesty King Alfonso XIII of Spain was elected as the third arbitrator, the
two arbitrators voting in favour, and no choice could have been more
appropriate. The affair is now brought to the august cognizance of His
Catholic Majesty, who has already appointed a commission of investigation
made up of distinguished persons.
………………………………………………………………………………………………
I have already declared in the chapter referring to Honduras that His
Majesty King Alfonso XIII is the arbitrator who is to settle our boundary
question; I am glad to add that the August Sovereign of the Mother Country
has generously informed the Nicaraguan Government, through his Minister of
State, that he feels it a very great pleasure to have been appointed to
settle the question pending between these two American Republics, for which
he has a warm sympathy. For this we are very grateful to the Spanish Monarch
and his enlightened Government."
No question was at any time raised in the arbitral proceedings before the
King with regard either to the validity of his designation as arbitrator or
his jurisdiction as such. Before him, the Parties followed the procedure
that had been agreed upon for submitting their respective cases. Indeed, the
very first occasion when the validity of the designation of the King of
Spain as arbitrator was challenged was in the Note of the Foreign Minister
of Nicaragua of 19 March 1912.
In these circumstances the Court is unable to hold that the designation of
the King of Spain as arbitrator to decide the boundary dispute between the
two Parties was invalid.
***
In support of its second contention, namely, that the Gamez-Bonilla Treaty
had lapsed before the King of Spain agreed to act as arbitrator, Nicaragua
argues that the Treaty came into effect on 7 October 1894, the date on which
it was signed, and that, by [p 208] virtue of Article XI, it lapsed ten
years later, on 7 October 1904. As the King of Spain agreed to act as
arbitrator on 17 October 1904, his designation as arbitrator took effect ten
days after the Treaty had, according to Nicaragua, ceased to be in force. On
this view of the matter, it is contended that the whole proceeding before
the King of Spain as arbitrator and his decision of 23 December 1906 was
null and void and of no effect whatever. The reply of Honduras is that the
Treaty did not come into effect till the exchange of ratifications between
the Parties, which was effected on 24 December 1896, and that consequently
the period of ten years laid down in Article XI of the Treaty expired on 24
December 1906. According to Honduras, therefore, the arbitral proceedings
were completed, and the Award was handed down, during the currency of the
Treaty.
It is argued on behalf of Nicaragua that Article IX of the Treaty, which
provided that the requirements laid down in Article VIII with regard to
ratifications and the exchange thereof should not hinder the immediate
organization of the Mixed Commission, meant that the period of time
specified in Article XI commenced to run, not as from the date of the
exchange of ratifications, but as from the date of signature of the Treaty.
Honduras, on the other hand, relies upon Article IX as making provision for
an exception to the coming into effect of the Treaty, which was to await the
exchange of ratifications, the object of the exception being that the
organization of the Mixed Commission need not be delayed pending the coming
into force of the Treaty on the date of the exchange of ratifications.
There is no express provision in the Treaty with regard to the date on which
it was to come into force. Taking into consideration the provisions of
Articles VIII, IX and X, the Court is of the view that the intention of the
Parties was that the Treaty should come into force on the date of exchange
of ratifications and that the ten-year period specified in Article XI should
begin to run from that date but that, in the meantime, in pursuance of
Article IX, the immediate organization of the Mixed Commission might be
proceeded with. That this was the intention of the Parties is put beyond
doubt by the action taken by the two Parties by agreement in respect of the
designation of the King of Spain as arbitrator. Agreement on the designation
of the King of Spain as arbitrator was reached on 2 October 1904. The Court
finds it difficult to believe that the Parties, or one of them, had in mind
an interpretation of the Treaty according to which the period provided for
in Article XI should expire five days later and that the Treaty should then
lapse. Indeed, on the very day on which, according to the present
submission of Nicaragua, the Treaty expired, the President of Nicaragua
stated in his telegram to the Spanish Minister to Central America that it
would be satisfactory and an honour for Nicaragua if the King of Spain would
accept his designation as arbitrator to settle the boundary dispute between
Honduras and Nicaragua. This [p 209] furnishes a clear indication that
Nicaragua did not regard the Treaty as having lapsed on that day.
Some support for Nicaragua's contention was sought to be drawn from the
suggestion made by the Spanish Minister to Central America to the President
of Honduras on 21 October 1904 and to the President of Nicaragua on 24
October 1904 that the period of the Treaty might be extended. In the opinion
of the Court, the time at which this initiative was taken shows that it did
not carry with it any implication that the Treaty had expired on 7 October
1904. In actual fact, no action was taken to extend the duration of the
Treaty. This furnishes confirmation of the view which the Court takes that
the Treat}' was not due to expire till ten years after the date of the
exchange of ratifications, that is to say, on 24 December 1906. Had this not
been so, the two Governments, when confronted with the suggestion made by
the Spanish Minister to Central America, would either have taken immediate
appropriate measures for the renewal or extension of the Treaty or would
have terminated all further proceedings in respect of the arbitration on the
ground that the Treaty providing for arbitration had already lapsed. On the
contrary, the two Governments proceeded with the arbitration and submitted
their respective cases to the arbitrator. This shows that the intention of
the Parties had been that the Treaty should come into force on the date of
the exchange of ratifications.
Again, it may be noted that no objection was taken before the King of Spain
to his proceeding with the arbitration on the ground that the Gamez-Bonilla
Treaty had already expired. Indeed, the very first allegation that the
Treaty had expired on 7 October 1904 was made as late as 1920 during a
mediation procedure undertaken by the Government of the United States of
America in an effort to resolve the boundary dispute between Honduras and
Nicaragua.
The Court, therefore, concludes that the Gamez-Bonilla Treaty was in force
till 24 December 1906, and that the King's acceptance on 17 October 1904 of
his designation as arbitrator was well within the currency of the Treaty.
***
Finally, the Court considers that, having regard to the fact that the
designation of the King of Spain as arbitrator was freely agreed to by
Nicaragua, that no objection was taken by Nicaragua to the jurisdiction of
the King of Spain as arbitrator either on the ground of irregularity in his
designation as arbitrator or on the ground that the Gamez-Bonilla Treaty had
lapsed even before the King of Spain had signified his acceptance of the
office of arbitrator, and that Nicaragua fully participated in the arbitral
proceedings before the King, it is no longer open to Nicaragua to rely on
either of these contentions as furnishing a ground for the nullity of the
Award. [p 210]
***
Honduras is thus seeking execution of the Award made on 23 December 1906 by
the King of Spain who, in the opinion of the Court, was validly designated
arbitrator by the Parties during the currency of the Gamez-Bonilla Treaty.
Nicaragua urges that even under those conditions the Award is a nullity and
seeks to establish the nullity of the Award on the grounds that it was
vitiated by:
(a) excess of jurisdiction;
(b) essential error;
(c) lack or inadequacy of reasons in support of the conclusions arrived at
by the Arbitrator.
Nicaragua also contends that the Award is in any case incapable of
execution by reason of its omissions, contradictions and obscurities.
Honduras contends that the conduct and attitudes of Nicaragua show that it
accepted the Award as binding and that in consequence of that acceptance
and of its failure to raise any objection to the validity of the Award for a
number of years, it is no longer open to Nicaragua to question the validity
of the Award on the grounds alleged or indeed on any ground at all. Honduras
further contends that the Award is clear and definite and is not incapable
of execution.
As already stated, the Award was handed down on 23 December 1906. On 24
December 1906 the President of Nicaragua received a telegram from the
Nicaraguan Minister in Madrid, which summarized the operative clause of the
Award as follows:
"Boundary begins mouth principal arm River Segovia leaving to Nicaragua
Island San Pio, with the bay and the town of Gracias and arm called Gracias;
line follows Segovia upstream until encounters Guineo; thereafter boundary
takes direction corresponding Sitio Teotecacinte, according to marking
established 1720, finishing at Portillo de Teotecacinte, said Sitio
remaining entirely to Nicaragua."
On the next day, the President of Nicaragua sent the following telegram to
the President of Honduras:
"Through a cable of today's date I have taken cognizance of the arbitral
award made by the King of Spain in the matter of the delimitation of the
frontier. Having regard to this decision, it appears that you have won the
day, upon which I congratulate you. A strip of land more or less is of no
importance when it is a question of good relations between two sister
nations. The irksome question of the delimitation of the frontier has been
resolved in such a satisfactory manner thanks to friendly arbitration. I
hope that in the future no obstacle will disturb the good relations between
our respective countries." [p 211]
In a Note dated 9 January 1907, addressed to the Spanish Chargé d'affaires
in Central America, the Foreign Minister of Nicaragua expressed the
appreciation of his Government "for the graciousness of the King of Spain
who, by his arbitral award, has terminated our frontier dispute with the
neighbouring state of Honduras".
On 28 January 1907, the full text of the Award was published in the Official
Gazette of Nicaragua.
On 1 December 1907, the President of Nicaragua, in his message to the
National Legislative Assembly of Nicaragua, stated as follows:
"On 23 December 1906, His Majesty the King of Spain made the Arbitral Award
in the matter of the delimitation of the frontier between this Republic and
that of Honduras. My Government has noted with satisfaction that this
important dispute has been terminated by the highly civilized method of
arbitration and, although it accepts this decision with pleasure, it has
given instructions to Minister Crisanto Medina with a view to requesting a
relevant clarification since this decision contains some points that are
obscure and even contradictory."
In the course of his report (Memoria) to the National Legislative Assembly
of Nicaragua, dated 26 December 1907, covering the period between 1 December
1905 and 30 November 1907, the Foreign Minister of Nicaragua, José Dolores
Gâmez, referring to Honduras, stated: "Our long-standing question of
boundaries with this sister Republic, which, as you will remember, we had
submitted to arbitration by the King of Spain, was finally settled by the
latter on 23 December 1906, on which date he made his Award." He went on to
explain that, despite every effort that had been made by the Government of
Nicaragua to obtain a more favourable decision, the decision was somewhat
disappointing. The report continued: "The Award in question also contains
contradictory concepts which make it difficult to put it into effect, for
which reason our Minister in Spain has been instructed to ask for a
clarification to avoid possible difficulties in the interpretation of these
concepts by the parties interested in the case." The report then stated
that, if satisfactory light was not thrown by the King upon the points
submitted to him, a friendly approach would be made to the Government of
Honduras so that "these final details" might be settled in all harmony and
to the satisfaction of both countries. The report affirmed "that the irksome
question of frontiers which has preoccupied us for so many years and which
might at any moment have impaired the good relations which have always
attached us to our Honduran brothers, has been settled. Boundary questions
are normally of a very serious and dangerous character, and as a rule they
leave in their wake feelings of deep resentment which are difficult to
overcome. For that reason we must rejoice at the friendly solution we have
been able [p 212] to find in the settlement of so delicate a question,
whatever lines of demarcation have today been laid down for our frontiers
with Honduras." In conclusion the report sounded a note of caution for the
future with regard to the seeking of settlements by arbitration without
appeal.
The section of the report dealing with Spain set out the Award in full.
The National Legislative Assembly of Nicaragua took note of the report and
by decree of 14 January 1908 approved "the acts of the executive power in
the field of foreign affairs between' 1 December 1905 and 26 December 1907".
On 25 April 1911, the Foreign Minister of Honduras addressed a Note to the
Foreign Minister of Nicaragua pointing out that
"it would be desirable to demarcate the small portion of the line which, in
conformity with the last paragraph of the Arbitral Award, extends from the
junction of the River Poteca or Bodega with the River Guineo or Namasli as
far as the Portillo de Teotecacinte, since the Arbitral Award fixed the rest
of the line along natural boundaries; for this purpose, as soon as the time
is thought opportune, my Government will approach Your Excellency's
Government with a view to carrying out this demarcation by agreement."
Early in September 1911, certain Nicaraguan papers carried a report
attributed to the Ministry of Foreign Affairs of Nicaragua that one of its
representatives, who was then in Europe, had been instructed to request the
King of Spain for a clarification of the Award. The Honduran Charge
d'affaires in Nicaragua thereupon approached the Foreign Minister of
Nicaragua and enquired whether the newspaper report was accurate. According
to the Note of the Honduran Charge d'affaires dated 8 September 1911,
addressed to his own Foreign Minister, a document presented to the Court by
Nicaragua, the Foreign Minister of Nicaragua replied that the press reports
were not true and
"that all that he had intimated to the journalists was that, together with
the Charge d'affaires, he was engaged in examining whatever had any
reference to fixing, in accordance with the Award, the line of demarcation
running from the junction of the Poteca or Bodega River as far as the
Portillo de Teotecacinte; and that everything would be done in a
satisfactory manner in view of the sincere and cordial relations existing
between the Governments of Honduras and Nicaragua."
It follows from the facts referred to above that Nicaragua took cognizance
of the Award and on several occasions between the date of the Award and 19
March 1912 expressed its satisfaction to Honduras that the dispute
concerning the delimitation of frontiers [p 213] between the two countries
had been finally settled through the method of arbitration.
Nicaragua urges that, when the President of Nicaragua dispatched his
telegram of 25 December 1906 to the President of Honduras, he was not aware
of the actual terms of the Award. From the telegram of the Minister of
Nicaragua in Madrid of 24 December 1906, the President of Nicaragua had
however learned where the boundary line was to begin under the Award, and
the course it was to follow in order to join up with the point reached by
the Mixed Boundary Commission. The President's own telegram to the President
of Honduras shows that he considered that the Award was on the whole in
favour of Honduras, and he gave expression to his feeling that the loss of a
certain area of territory was not too serious a sacrifice as against the
strengthening of friendly relations between the two countries. In any event,
the full terms of the Award must have become available to the Nicaraguan
Government fairly soon since the Award was published in the Official Gazette
of Nicaragua on 28 January 1907. Even thereafter, the attitude of Nicaragua
towards the Award continued to be one of acceptance, subject to a desire to
seek clarification of certain points which would facilitate the carrying
into effect of the Award. This desire was, however, not carried beyond the
giving of certain instructions to the Nicaraguan Minister in Madrid and no
request for clarification was in fact submitted to the King of Spain.
Changes of Government in Nicaragua and Honduras did not bring about any
change in this attitude till March of 1912 when the Foreign Minister of
Nicaragua, in his reply dated 19 March 1912 to the Note of the Foreign
Minister of Honduras, dated 25 April 1911, for the first time raised the
question of the validity of the Award on the grounds that the King of Spain
had not been validly designated arbitrator, that the Award did not comply
with the conditions laid down by the Gamez-Bonilla Treaty and that it was
not "a clear, really valid, effective and compulsory Award".
***
In the judgment of the Court, Nicaragua, by express declaration and by
conduct, recognized the Award as valid and it is no longer open to Nicaragua
to go back upon that recognition and to challenge the validity of the Award.
Nicaragua's failure to raise any question with regard to the validity of the
Award for several years after the full terms of the Award had become known
to it further confirms the conclusion at which the Court has arrived. The
attitude of the Nicaraguan authorities during that period was in conformity
with Article VII of the Gamez-Bonilla Treaty which provided that the
arbitral decision whatever it might be—and this, in the view of the Court,
includes the decision of the King of Spain as arbitrator— [p 214]
"shall be held as a perfect, binding and perpetual Treaty between the High
Contracting Parties, and shall not be subject to appeal".
Nicaragua, however, contends that having in Appendix B of the Washington
Agreement of 21 July 1957 made the reservation that, "when it appears before
the International Court of Justice, it will answer the claim of Honduras,
presenting reasons, actions and facts, and opposing the exceptions that it
considers appropriate, in order to impugn the validity of the Arbitral Award
of 23 December 1906, and its compulsory force, and also invoking all those
rights that may be in its interest", it is entitled to ask the Court for a
decision on the grounds of nullity put forward by it against the Award. The
reply of Honduras to this contention is that the effect of Appendix A and
Appendix B to the Washington Agreement was no more than to leave it open to
the Parties to present their respective cases to the Court in any manner
permissible to them under international law and the Statute and Rules of
Court, that Nicaragua was free to submit to the Court any grounds on which
it placed reliance in order to establish the nullity of the Award but that
it was equally open to Honduras to submit that, having regard to the conduct
and attitudes of Nicaragua, the Court was not called upon to pronounce on
all or some of those grounds. The Court is inclined to the view that the
Honduran contention is well-founded.
However, even if there had not been repeated acts of recognition by
Nicaragua which, as the Court has found, debars it from relying subsequently
on complaints of nullity and even if such complaints had been put forward in
proper time, the Award would, in the judgment of the Court, still have to be
recognized as valid. The Court will proceed to indicate very briefly the
reasons for arriving at this conclusion. Before doing so, the Court will
observe that the Award is not subject to appeal and that the Court cannot
approach the consideration of the objections raised by Nicaragua to the
validity of the Award as a Court of Appeal. The Court is not called upon to
pronounce on whether the arbitrator's decision was right or wrong. These and
cognate considerations have no relevance to the function that the Court is
called upon to discharge in these proceedings, which is to decide whether
the Award is proved to be a nullity having no effect.
Nicaragua's first complaint is that the King of Spain exceeded his
jurisdiction by reason of non-observance of the rules laid down in Article
II of the Gamez-Bonilla Treaty. It is contended in the first place that the
arbitrator failed to observe the rules laid down in paragraphs 3 and 4 of
that Article. The first of these two rules states that "each Republic is
owner of the territory which at the date of Independence constituted
respectively the provinces of Honduras and Nicaragua". The rule in paragraph
4 calls upon the arbitrator to consider "fully proven ownership of
territory" and precludes recognition of "juridical value to de facto
possession [p 215] alleged by one party or the other". Nicaragua contends
that the arbitrator fixed what he regarded as a natural boundary line
without taking into account the Laws and Royal Warrants of the Spanish State
which established the Spanish administrative divisions before the date of
Independence. In the judgment of the Court this complaint is without
foundation inasmuch as the decision of the arbitrator is based on historical
and legal considerations (derecho histórico) in accordance with paragraphs
3 and 4 of Article II.
With regard to the same complaint, Nicaragua, in the second place, stresses
that the arbitrator purported to exercise his discretion in granting
compensations in order to establish, in so far as possible, a well-defined
natural boundary line as provided for in paragraph 6 of Article II of the
Treaty. Nicaragua contends that this discretion was, under the said
paragraph, vested in the Mixed Boundary Commission and could not be
exercised by the arbitrator. In exercising this discretion, the arbitrator,
it is urged, exercised a power which he did not possess, or which, if
conferred upon him, he exercised far beyond its legitimate limit. The Court
is unable to share this view. An examination of the Treaty shows that the
rules laid down in Article II were intended not only for the guidance of the
Mixed Commission to which they expressly referred, but were also intended to
furnish guidance for the arbitration. No convincing reason has been adduced
by Nicaragua in support of the view that, while the remaining paragraphs of
Article II were applicable to the arbitrator, paragraph 6 was excluded and
that, if it was not excluded, the arbitrator, in applying it, exceeded his
powers. In the view of the Court, the arbitrator was under obligation to
take into account the whole of Article II, including paragraph 6, to assist
him in arriving at his conclusions with regard to the delimitation of the
frontier between the two States and, in applying the rule in that paragraph,
he did not go beyond its legitimate scope.
The Court, having carefully considered the allegations of Nicaragua, is
unable to arrive at the conclusion that the King of Spain went beyond the
authority conferred upon him.
Nicaragua next contends that the Award is a nullity by reason of "essential
error". The Court has not been able to discover in the arguments of
Nicaragua any precise indication of "essential error" which would have the
effect, as alleged by Nicaragua, of rendering the Award a nullity. Under
paragraph 7 of Article II of the Gámez-Boniila Treaty, "in studying the
plans, maps and other similar documents which the two Governments may
submit", the arbitrator was to prefer those which he "deems more rational
and just". The instances of "essential error" that Nicaragua has brought to
the notice of the Court amount to no more than evaluation of documents and
of other evidence submitted to the arbitrator. The appraisal of the
probative value of documents and [p 216] evidence appertained to the
discretionary power of the arbitrator and is not open to question.
The last ground of nullity raised by Nicaragua is the alleged lack or
inadequacy of reasons in support of the conclusions arrived at by the
arbitrator. However, an examination of the Award shows that it deals in
logical order and in some detail with all relevant considerations and that
it contains ample reasoning and explanations in support of the conclusions
arrived at by the arbitrator. In the opinion of the Court, this ground is
without foundation.
***
It was further argued by Nicaragua that the Award is not capable of
execution by reason of its omissions, contradictions and obscurities, and
that therefore on this ground the Court must reject the submission of
Honduras praying that the Court should adjudge and declare that Nicaragua is
under an obligation to give effect to the Award.
The operative clause of the Award fixes the common boundary point on the
coast of the Atlantic as the mouth of the river Segovia or Coco where it
flows out into the sea, taking as the mouth of the river that of its
principal arm between Hara and the Island of San Pío where Cape Gracias a
Dios is situated, and directs that, from that point, the frontier line will
follow the thalweg of the river Segovia or Coco upstream without
interruption until it reaches the place of its confluence with the Poteca or
Bodega and that thence the frontier line will depart from the river Segovia
or Coco continuing along the thalweg of the Poteca or Bodega upstream until
it joins the river Guineo or Namasli. From this junction, the line will
follow the direction which corresponds to the demarcation of the Sitio of
Teotecacinte in accordance with the demarcation made in 1720 to terminate at
the Portillo de Teotecacinte in such manner that the said Sitio remains
wholly within the jurisdiction of Nicaragua.
Nicaragua has argued that the mouth of a river is not a fixed point and
cannot serve as a common boundary between two States, and that vital
questions of navigation rights would be involved in accepting the mouth of
the river as the boundary between Honduras and Nicaragua. The operative
clause of the Award, as already indicated, directs that "starting from the
mouth of the Segovia or Coco the frontier line will follow the vaguada or
thalweg of this river upstream". It is obvious that in this context the
thalweg was contemplated in the Award as constituting the boundary between
the two States even at the "mouth of the river". In the opinion of the
Court, the determination of the boundary in this section should give rise to
no difficulty.
Nicaragua argues further that the delimitation in the operative clause
leaves a gap of a few kilometres between the point of deparas [p 217]ture
of the frontier line from the junction of the Poteca or Bodega with the
Guineo or Namasli up to the Portillo de Teotecacinte, which was the point to
which the Mixed Commission had brought the frontier line from its western
boundary point. An examination of the Award fails to reveal that there is in
fact any gap with regard to the drawing of the frontier line between the
junction of the Poteca or Bodega with the Guineo or Namasli and the Portillo
de Teotecacinte.
In view of the clear directive in the operative clause and the explanations
in support of it in the Award, the Court does not consider that the Award is
incapable of execution by reason of any omissions, contradictions or
obscurities.
For these reasons,
The Court,
by fourteen votes to one,
finds that the Award made by the King of Spain on 23 December 1906 is valid
and binding and that Nicaragua is under an obligation to give effect to it.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this eighteenth day of November, one thousand nine
hundred and sixty, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
Republic of Honduras and the Government of the Republic of Nicaragua,
respectively.
(Signed) Helge Klaestad,
President.
(Signed) Garnier-Coignet,
Registrar.
Judge Moreno Ouintana makes the following Declaration:
Although I am in agreement with the virtually unanimous opinion of my
colleagues with regard to the decision reached in this case, I consider that
it should have been arrived at by a different procedural method. As a
representative on this Court of a Spanish-American legal system and
confronted with a dispute between two Spanish-American States, I believe
that the legal questions which are of particular concern to them should have
been dealt with in the first place. I refer in particular to that provided
for in Article II paragraph 3, of the Garnez-Bonilla Treaty, which relates
to the [p 218] application by the arbitrator of the principle of uti
possidetis juris which for more than a century has governed the territorial
situation of the Spanish-American States. By reason of its importance this
principle called for initial attention by the Court since Nicaragua based a
major ground of nullity of the Award of the King of Spain on the
arbitrator's failure to observe it.
Again, the case essentially involves the validity or invalidity of an
international legal act. The Judgment might therefore with advantage have
established the intrinsic regularity of the Award, after having analysed its
extrinsic regularity, instead of—as it does—resting the solution of the case
in advance upon acquiescence in the Award by the Parties. This latter
situation, in the present case, in which one of the Parties contends for the
nullity of the Award, is of no more than subsidiary importance. It provides
a procedural argument based on a situation of fact, but it does not provide
an adequate legal ground upon which to base the Judgment.
Furthermore, the features of the case do not put in issue the good faith of
the unsuccessful party. Nicaragua, during the half century in which the
Award was not implemented and in which the question of its
non-implementation was not referred by Honduras to any international
tribunal, may have had reasons, although ill-founded, for believing in the
nullity of that legal act. A number of attempts by Nicaragua to obtain an
arbitral decision to that effect remained unsuccessful. There was nothing to
prevent the Court from so finding. Honour was due to the State which,
together with the successful party and with Costa Rica, Guatemala and El
Salvador, gave so splendid an example of devotion to the cause of law in
setting up in 1907 the Central American Court of Justice, the first example
in the world of an international judicial tribunal. The technical function
of the Court is not incompatible with that of rendering in its judgments
peace to the spirit, particularly in the case of sovereign States. Pax est
justitia.
Judge Sir Percy Spender appends to the Judgment of the Court a statement of
his Separate Opinion.
M. Urrutia Holguin, Judge ad hoc, appends to the Judgment of the Court a
statement of his Dissenting Opinion.
(Initialled) H. K.
(Initialled) G.-C.
[p 219]
SEPARATE OPINION OF SIR PERCY SPENDER
I agree that the Award is valid and that Nicaragua is under an obligation to
give effect to it. Since however my approach to certain of the issues
involved in these proceedings varies in some respects from that which the
Court has adopted, I desire to state in summary form my views on the main
issues.
***
The validity of the Award depends initially upon the sovereign consent of
the two States that an award may be made. The nature and the conditions of
such consent are contained in the Gamez-Bonilla Treaty which was to be in
force for a period of ten years.
Nicaragua has contended that this period of time began to run as from the
date of signature of the Treaty and that accordingly the Treaty had expired
at the time the King of Spain accepted the office of sole arbitrator and a
fortiori when the Award was made.
I agree with the conclusion of the Court that the period of time that the
Treaty was to be in force began to run as from the date of the exchange of
ratifications made under Article VIII thereof.
This contention of Nicaragua is accordingly without substance.
***
Nicaragua next contends that the King of Spain never possessed the capacity
of a sole arbitrator; that what purported to be his appointment was in
breach of the provisions of the Treaty and was totally devoid of all
validity.
I do not find it necessary to determine whether the King's appointment
involved any non-compliance with the provisions of the Treaty. Although I
incline strongly to the view that the appointment was irregular, this
contention of Nicaragua fails because that State is precluded by its conduct
prior to and during the course of the arbitration from relying upon any
irregularity in the appointment of the King as a ground to invalidate the
Award.
Having failed to challenge the competency of the King as sole arbitrator
before or during the course of the arbitration but, on the contrary, having
invited him to make an award on the merits, Nicaragua was thereafter
precluded, from contesting the regularity of the appointment.
All the relevant facts relating to that appointment were known to it when it
participated in the arbitration. Each State party to [p 220] the arbitration
proceedings was entitled to place faith upon the deliberate conduct of the
other State in the course of such proceedings. Nicaragua cannot be
permitted to be placed in the position where, had the Award been
satisfactory from its point of view, it could have accepted it, if not be
free to disregard it as a nullity.
It would be contrary to the principle of good faith governing the relations
between States were it permitted now to rely upon any irregularity in the
appointment to invalidate the Award. Its con-duct up to the moment the Award
was made operated in my opinion so as to preclude it thereafter from doing
so, irrespective of any subsequent conduct on its part.
I rest my opinion on this ground.
***
As to the contentions of Nicaragua that the Award is null on the grounds of
(a) Excess of jurisdiction
(b) Essential error
(c) Lack or inadequacy of reasons in support of the Award,
I agree that Nicaragua, by reason of its conduct subsequent to the Award
being made, is precluded from relying upon any one of these contentions to
invalidate the Award. I place particular importance upon the fact that
Nicaragua, for many years after the terms of the Award became known to it,
failed to raise any question whatever as to its validity.
I rest my opinion on this aspect of the case exclusively on the ground of
preclusion. It is unnecessary to determine whether but for this preclusion
any of these contentions of Nicaragua would have afforded a cause of
nullity. To attempt to do so would be, in my view, an irrelevant excursion.
***
Finally, I agree that the contention of Nicaragua that the Award, by reason
of obscurities and contradictions alleged by it, is incapable of execution,
is without substance. No reason appears which would prevent the Award being
carried into effect.
(Signed) Percy Spender.
[p 221]
DISSENTING OPINION OF JUDGE URRUTIA HOLGLTN
[Translation]
I regret that I am unable to concur in the Judgment of the Court.
I must state my personal conclusions on: I. The legal doctrines involved.
II. The different concepts in America and in Europe as to the exercise of
the right of States to contest arbitral awards.
III. The uti possidetis juris rule which in America excluded decisions in
equity.
IV. Possible defects giving rise to nullity and acts of acquiescence in the
Award of the King of Spain of 23 December 1906.
I. Legal doctrines
During the course of the present proceedings both Nicaragua and Honduras
have set forth legal theories, as to which certain observations should be
made:
Effects of the nullity of arbitral awards
In international law, there are not some defects which are "sanabiles" and
others which are "insanabiles", the reason being that there is no compulsory
international jurisdiction by means of which the causes of nullity may be
put right. The absence in international law of such a body cannot confer an
automatic character upon nullity, allow a State to be judge in its own case
and to declare itself free from any obligation to carry out an award, just
as on the other hand it cannot confer an automatic character on an absolute
presumption of the validity of the award nor confer the right to require its
execution without permitting the verification of its validity when the other
party validly raises grounds of nullity.
In a conflict between the rights of the State which invokes the nullity of
an arbitral award and of the State which relies upon res judicata, the only
recourse at the disposal of the countries is to ask an international court
to decide the question whether there is a judgment having binding force.
In Latin America, in all the cases referred to in Part II in which the award
was disputed, its execution was suspended and the question of its validity
referred to the decision of a new arbitrator— as, moreover, in the present
case, where Counsel for Honduras explained (at the meeting of 7 October)
that the country which he represented claimed the execution of the award,
but that the obligation to give effect to the award resulted only from
"a finding by the Court of its binding force". [p 222]
The Court was asked to consider the cases in which acts of acquiescence,
estoppel, or the belated raising of grounds of nullity might limit the right
of a State to dispute the validity of an award or might deprive it of that
right.
(i) Acquiescence. To see what effect acquiescence may have in regard to an
award the validity of which is disputed, it is necessary to define the
possible limits of acquiescence, and to see whether it is within the power
of acquiescence to revive the non-existent effects of an award which is
void.
In civil law there are acts which are null and void which cannot be given
life even by subsequent acceptance by the parties. In international law,
however, States are sovereign and are bound by no limitation upon their
acceptance of or agreement to anything whatsoever.
States may agree, if they think fit, to the carrying out of the provisions
of a null and void award, but in that case the cause and the legal basis of
the provisions of the award are not to be found in the award which is a
nullity, but in the valid agreement between two Sovereign States.
If there are in the award itself any essential defects of which the parties
cannot know before they receive the text of the award, it is possible to
regard as acquiescence only some formal decla-ration by the competent organ
of the State making clear that it expressly renounces the right to dispute
the validity of the award.
In treaties which submit a question for decision "without appeal" by an
arbitrator or a court, the parties renounce the right to bring proceedings
"on appeal", but they cannot in advance renounce the right ever to contest a
future award, the contents of which they do not know, on the ground that it
is a nullity.
(ii) Estoppel. The objection on the grounds of good faith which exists in
almost all legal systems and which prevents a party from profiting by its
own misrepresentation and which, in Anglo-Saxon law, is known as estoppel,
would be applicable in the present case if it were proved that the action
and behaviour of one of the States caused the other State to place reliance
upon its acts of acquiescence and to believe in its renunciation of its
right to dispute the validity of the award.
(iii) Belated raising of grounds of nullity. So far there does not exist in
international law any uniform custom which makes it possible to assert that
inaction on the part of States which may have interest in invoking a ground
of nullity involves any presumption of their renunciation of the right to
contest the validity of an award.
In private law there are rules relating to prescription and limitation but
in general, in almost all legal systems, an exception is made in respect of
the rights of the State, which are held not to be barred by the passage of
time. [p 223]
In international relations, in certain cases the challenging of an award by
the State concerned has been immediate. In other cases, several years have
elapsed before it was disputed. In the St. Law-rence River case, the award
made in 1814 was contested in a Note of 1831 and the contestation was
accepted in 1842. In the case between Venezuela and Colombia, the King of
Spain's award was rendered in 1891. Venezuela originally accepted the award
but in 1917 secured the agreement of Colombia to the submission of the
question of the validity of the award to the Swiss Federal Council. Costa
Rica's contestation of President Loubet's award of 1897 was not brought
before Chief Justice White until 1910.
In America, in eleven bilateral treaties on general arbitration signed
before 1911, a procedure for re view on the ground of the nullity of the
award was provided for. In two of those treaties, a time-limit of from three
to six months was laid down for bringing the proceedings, and in the other
cases it was simply stated that they should be brought before the carrying
out of the award.
II. Different concepts in America and in Europe as to the exercise of the
right of states to contest arbitral awards
The rules and customs generally accepted in America were in 1894 and 1907
far from being those which may be regarded as the most desirable for giving
greater authority to arbitration in the international law of 1960.
Whereas in Europe there had only been recourse to arbitration in the
nineteenth century with the greatest precautions and on the basis of special
agreements signed in respect of each particular case, America was in advance
of the times and had, between 1847 and the Second Hague Conference, signed
more than two hundred general treaties of arbitration. In forty-eight of
these compulsory arbitration was provided for in respect of territorial
questions.
That explains why at the Hague Conference of 1907 (only Mexico had been
invited to the 1899 Conference) the American representatives: (1) urged the
ideal approved in America of compulsory arbitration, even for territorial
questions, (2) insisted that it should be restricted to legal decisions, and
(3) supported the establishment of a body to verify the validity of awards.
In 1907 European prudence, on the contrary, sought to confine the notion of
arbitration: (1) to questions which did not involve the honour or the
essential interests of States, (2) to arbitration all the rules for which
had been laid down in the special agreement, and (3) to awards against which
the possibility of any type of remedy was resisted.
Faced with the difficulties presented, in i960, by the interpretation of
the intention of the parties in signing a treaty in 1894, the [p 224]
circumstances in which certain proceedings took place in 1904, or the
significance of the actions of American States in 1906, the Court cannot
lose sight of the fact that the diplomatic history of the evolution of the
principle of arbitration in America is more authoritative than the literal
or textual examination of documents.
In the case with which we are dealing, it is of particular importance not to
pass a judgment on the acts or behaviour of the parties in their attempts to
ask for explanations or to verify the validity of awards, without studying
the customs which, as regards those aspects of arbitration procedure, were
accepted in America at that time.
Although the existence of grounds of nullity in respect of arbitral awards
was recognized by the Institut de Droit international as long ago as 1875,
the idea has been accepted in Europe only with very marked reserve.
At the Hague Peace Conferences in 1899 and 1907 the possibility of calling
in question the validity of an award was deleted from the two draft
Conventions in view of the difficulty of suggesting any authority which
should adjudicate upon the issue of validity. The reserve up till 1907 with
regard to this aspect of the evolution of the law in Europe is explained in
the course of lectures by Professor Borel on "Voies de recours centre les
sentences arbitrates" (1935, II), and M. Lammasch expressed this European
reticence when in 1914 he proposed that proceedings to upset awards should
only be allowed with the consent of the arbitrator.
In America, on the other hand, as early as 1899, arbitration treaties had
been signed containing clauses which provided for review of awards on
grounds of nullity.
In a series of treaties of which the first two were signed in 1899 with
Paraguay and with Uruguay, Argentina accepted arbitration by tribunals whose
award could be challenged in the event of falsification of documents or
"error of fact" resulting from the procedure or from the documents submitted
to the arbitrator.
Before the Hague Conference, four other treaties on the same lines were
signed: by Bolivia and Peru in 1902, by Argentina and Bolivia in 1902, by
Brazil in 1907, by Chile in 1902, and two others in 1911 and 1912 between
Colombia and Argentina and between Argentina and Ecuador.
In 1902 and 1905 Brazil signed general arbitration treaties with Bolivia and
Peru, in which a new aspect of the nullity of awards was provided for,
namely the case where, in whole or in part, the award was based on an error
of fact; and in 1907 Peru and Colombia went further, and allowed review in
cases where the award was allegedly based on a "positive or negative" error
of fact.
Historical circumstances explain these two tendencies:
In Europe, up to the beginning of the present century, resort was as a rule
had to arbitration only for the settlement of questions [p 225] relating to
concessions, claims or compensation which, in sixteen out of twenty-two
cases cited between 1850 and 1910, had to be paid by American countries on
the basis of arbitral awards more often than not manifestly unjust or
vitiated by defects rendering them nullities, and it is understandable that
the European countries were not inclined to weaken the principle of res
judicata nor to accept a change in the rule as to the execution without
appeal of awards which had been so successful from their point of view.
In America, on the other hand, the legal abuses to which these arbitrations
gave rise resulted in the express recognition of the right of States to
challenge the validity of arbitral awards in the eleven treaties signed
between 1899 and 1912, mentioned above, and in all arbitrations regarding
territorial boundaries where the awards were disputed, and which were the
following:
(a) The boundary case between Colombia and Venezuela in which the King of
Spain's arbitral award was accepted by the parties in 1891 but in which
another arbitration by the Swiss Federal Council was agreed upon in 1917 to
decide all the questions relative to the King's award.
(b) President Loubet's award of 1897 in the case between Costa Rica and
Panama, which was disputed by Costa Rica and never carried out.
(c) The award by Chief Justice White in 1910, in the proceedings between
Panama and Costa Rica in respect of President Loubet's award, which was held
by Panama to be vitiated and a nullity and was never carried out.
(d) The validity of the award of 1909 by President Figueroa Alcorta in the
frontier dispute between Bolivia and Peru, which was contested by Bolivia.
As A. Sanchez de Bustamante explained in his opinion on the question of
Costa Rica and Panama, page 11:
"The Award rendered by Dr. Figueroa Alcorta on 9 July 1909 immediately gave
rise to a protest by Bolivia, on the ground that the arbitrator had exceeded
his powers and had not kept to the terms of the Agreement ... despite
ill-informed passions which were dangerously over-excited, both at Buenos
Aires and at Lima patriotism in the end finished by seeing reason, the
Peruvian Government renounced part of the advantages which the arbitrator's
award offered to it, and dealt directly with its former opponent to arrange
in a friendly way the boundary of their respective possessions."
(e) The United States disputed and today still disputes the validity of the
award of 1910 in the Chamizal case with Mexico. Mexico has still not been
able to obtain either the carrying out of the award or agreement to submit
the question of its validity to the consideration of another tribunal. [p
226]
(f) In a matter where not only American countries were concerned, but also
Great Britain, the United States disputed the King of Holland's award on the
St. Lawrence River boundary; that country's objections were accepted by the
other side and the award had no effects.
In several cases arising between American countries and bearing upon claims
which were submitted to arbitration, the right to verify the validity of the
award was also recognized (Akra Silver Mining in 1898, Paraguay Navigation
Company in i860, the Orinoco case in 1904), but, in disputes regarding
national sovereignty and territorial questions, the contestation was in all
cases accepted or submitted to the decision of a new arbitrator.
III. Arbitrations agreed to on the basis of "uti possidetis juris" could
only be on a strict basis of law and excluded decisions in equity
The countries of Latin America whose constitutions had fixed their
boundaries on the basis of the uti possidetis juris existing at the time
when they became independent envisaged only strictly legal decisions when
they undertook to submit the delimitation of their boundaries to
arbitration.
This rule which the parties laid down for recourse to arbitration was not
merely academic but a condition precedent sine qua non which had its origin
in the actual constitutions of the States.
The reason why Colombia, Costa Rica, Venezuela, Nicaragua, Honduras, Peru
and Ecuador applied to the King of Spain is explained in the decision of the
Swiss Federal Council in the pro-ceedings concerning the Award rendered by
the King of Spain in 1891 in the dispute between Colombia and Venezuela:
"When the Spanish colonies of Central and South America proclaimed their
independence in the second decade of the nineteenth century, they adopted a
principle of constitutional and international law to which they gave the
name of uti possidetis juris of 1810 for the purpose of laying down the rule
that the boundaries of the newly established republics should be the
frontiers of the Spanish provinces which they were succeeding. This general
principle offered the advantage of establishing an absolute rule that in law
no territory of the former Spanish America was without an owner. Although
there were many regions that had not been occupied by the Spanish and many
regions that were unexplored or inhabited by uncivilized natives, these
regions were regarded as belonging in law to the respective republics that
had succeeded the Spanish provinces to which these lands were connected by
virtue of old royal decrees of the Spanish mother country. These
territories, although not occupied in fact, were by common agreement
considered as being occupied in law by the new republics from the very
beginning. Encroachments and ill-timed efforts at colonization beyond the
frontiers, as well as de facto occupation, became ineffective and of no
legal consequence." [p 227]
The countries which asked the King of Spain to interpret the uti -
possidetis juris in accordance with the titles of Spanish sovereignty thus
did so because they thought that he was the best qualified authority to
interpret his own legal rules, but they certainly did not think of
entrusting to "his equity" the interpretation of constitutional clauses
which had in fact been approved for the very purpose of throwing off the
Spanish yoke.
IV. Possible defects giving rise to nullity and acts of acquiescence in the
award of the king of spain
Of the four arbitrations entrusted to the King of Spain by these countries,
that between Colombia and Venezuela could not be carried out until the
decision of 1923 in the new proceedings before the Swiss Federal Council.
The arbitration between Colombia and Costa Rica was withdrawn from the
King's consideration in 1896, shortly after his Award in the previous case,
and the King himself in 1910 declined to give a decision in the arbitration
between Peru and Ecuador twenty-three years after the matter had been
submitted to him. The fourth arbitration is that between Honduras and
Nicaragua.
On the basis of the principles set forth in the foregoing parts, and bearing
also in mind the historical reasons which explain the origin of this
arbitration, let us consider the King's Award of 23 December 1906 for the
purpose of ascertaining
(a) whether the extrinsic defects of the Award entail its nullity;
(b) whether there are intrinsic defects evident in the Award, and whether
Nicaragua has forfeited the right conferred upon it by international law to
rely on those grounds of complaint, either by reason of her acquiescence or
because of their belated submission.
(a) Extrinsic defects
The Court considers that the extrinsic defects of the Award resulting from
the arbitrator's lack of powers are covered by Nicaragua's subsequent acts
of acquiescence.
I consider that the extrinsic defects do not entail the nullity of the
Award, for different reasons:
(1) The appointment of the King was irregular, since not all the procedures
laid down by the Treaty were complied with. The arbitrators were not
authorized to jump from Article III to the end of Article V, leaving out of
account mandatory provisions which it was not within their duties nor their
competence to be able to change.
(2) There are other manifest irregularities, such as that of the
intervention of the Spanish Minister, M. Carrere y Lembeye, in the choice of
the King of Spain as sole arbitrator, since if the tribunal provided for in
the Gamez-Bonilla Treaty had already [p 228] been set up on 2 October 1904,
M. Carrere y Lembeye was himself the third arbitrator and the tribunal, once
constituted, could not give up its duties and transfer them to a new
arbitrator. If, on the contrary, what was involved was merely a preparatory
meeting, the Honduran and Nicaraguan arbitrators had no need of M. Carrere
y Lembeye, who could not take part in the discussions of the tribunal unless
he had already been appointed third arbitrator.
The procedural irregularities at the meetings of 2, 10 and 18 October were
not, however, in contradiction with the chief object of the Gamez-Bonilla
Treaty, which was to submit the question to a procedure which envisaged the
possibility, provided for in Article V, of appointing the Spanish Government
as arbitrator.
The fact that the two Governments accepted the appointment of the King,
welcomed the choice and argued the case at Madrid, proves that they did not
regard as essential the rules of procedure which had been laid down, and
non-essential defects do not involve nullity.
Doubts have also been put forward as to the date when the period of ten
years of the Gamez-Bonilla Treaty began to run. The intention of the
parties is not clear, and different interpretations of the Treaty might be
justified, if both Nicaragua and Honduras had not themselves in 1904
believed in good faith that the Treaty had not expired.
It would be questioning the President of Nicaragua's good faith to suppose
that he sent a telegram on 7 October 1904, expressing his hope that the King
would accept the task of arbitration, on the very day when the Treaty came
to an end.
It is not acquiescence and acceptance which revalidate these irregularities,
but the interpretations by the Parties in 1904 of the Gamez-Bonilla Treaty,
which are definitive and which cannot now be called in question.
(b) Acquiescence and intrinsic defects of the Award
To be able to assert, as the Court does, that Nicaragua, by express
declaration and by conduct, recognized the Award as valid and binding and
that it is no longer open to Nicaragua to go back upon that recognition and
to challenge the validity of the Award, it must first of all be established
whether there are essential defects.
I. Intrinsic defects
The fundamental question on which my opinion is different from that of the
majority of the Court is that of the interpretation of the rules of the
special agreement set forth in Article II of the Gamez-Bonilla Treaty.
Interpreting those rules in a different way, I come to the conclusion that
the King exceeded his powers and, thus faced with the nullity of the Award,
I cannot accord the same weight to the acts of acquiescence found by the
Court. [p 220]
(i) Interpretation of the rules of the Agreement
For the reasons set forth in Parts II and III on the legal rules accepted by
the American countries, I do not consider that all the paragraphs of Article
II had the same importance.
The rules which constituted a condition precedent governing the whole
arbitration were those of paragraphs 3 and 4 on the fixing of the boundaries
in accordance with the legal titles existing at the date of independence.
This rule is strengthened by the fact that the arbitrator is expressly
forbidden to recognize any juridical value to de facto possession.
These two mandatory rules were in conformity with the constitutional
provisions of the two countries, and it is difficult to believe that their
Parliaments ratified this Treaty while attributing to other paragraphs (5, 6
and 7) of Article II a scope which would have the effect of making them
prevail over or which would be in conflict with the rule in their
Constitutions.
The text adopted in paragraphs 5 and 6 of Article II of the Gamez-Bonilla
Treaty was practically the same as that proposed in 1886 by Colombia and
Venezuela, adopted again in the Treaty of 1886 between Nicaragua and Costa
Rica, the Treaty of 1902 between Bolivia and Peru, and the Treaty of 1930
between Guatemala and Honduras.
The interpretation given both by the parties and by the arbitrators to
clauses drawn up in the same terms as those of Article II of the
Gamez-Bonilla Treaty is in consonance with the idea of arbitration strictly
on the basis of law and does not recognize the right of the arbitrator to
determine a line "according to equity".
These treaties and the interpretations put upon them are as follows:
(a) Arbitration by President Figueroa Alcorta
In 1902 Peru and Bolivia signed an arbitration agreement which laid down a
rule similar to that of paragraph 4 of Article II of the Gamez-Bonilla
Treaty:
"Art. 3.—The possession of a territory, although held by one of the parties,
cannot have effect nor prevail against the titles or royal dispositions
setting forth the contrary",
and another Article which authorized compensations in the following terms:
"Art. 4.—Only when the royal acts or dispositions do not define the dominion
of a territory in clear terms shall the arbitrator decide the question
according to equity, keeping as near as possible to the meaning of those
documents and to the spirit which inspired them."
These two Articles gave the arbitrator indisputably fuller and clearer
powers than those conferred by the Gamez-Bonilla Treaty. [p 230]
Despite these authorizations, President Figueroa Alcorta was unwilling to
interpret them as a right to decide the question as a whole according to
equity but merely to fix the frontier line so that it should follow those
geographical features which were nearest to the legal line.
But the application even in this restricted sense of the right laid down in
the arbitration agreement gave rise to protests, and Argentina and Bolivia
broke off relations, but the Argentine internationalist Sanchez Sorondo in
the book which he published to justify the award and the attitude of
President Figueroa Alcorta explained in the following terms how this article
of the agreement was interpreted by the Argentine President:
"The arbitrator was in any case a judge of law and in no sense a judge of
conscience. The treaty laid down two rules to qualify the results of his
historical and legal investigation. The first was direct and derived from an
express title, the second was approximate and derived from the sense and
the spirit of titles which were neither clear nor precise. But the equity of
which the treaty speaks is not subjective but merely a matter of the
interpretation of the documents submitted.
... he could not draw capricious lines based upon reasons which could not be
inferred from the documents, nor settle the dispute as a mediator by the
proportional division of the territory in question."
In his last recital but one, President Figueroa Alcorta confirmed that he
"would settle these questions equitably, keeping as near as possible to the
sense of the royal provisions".
(b) Arbitration by the King of Spain in the boundary dispute between
Venezuela and Colombia
This was signed in 1881, but Venezuela refused to accept the clause which
conferred the power of judging "in equity", explaining that legal decisions
could be considered declaratory, whilst a decision in equity would imply a
cession of territory forbidden by the federal constitution.
In 1886, Colombia secured the following clause in an additional instrument
signed at Paris:
"... The arbitrator may fix the line in the way which he thinks the closest
to the existing documents when, in one or another part of the line, those
documents are not sufficiently clear."
The power thus conferred was similar to that laid down in the Gámez-Bonilla
Treaty, yet the King only made use of it in respect of two sectors and for
the following reasons: (1) in the Sarrare region, because "the Royal cédula
of 1786, which must serve as the legal basis for the fixing of the boundary
in the fifth sector, raises doubts in that it mentions the names of places
not known today, namely the Barrancas de Sarrare and the Paso Real de los
Casa-[p 231]nares"; the King chose the course of the river "Sarrare", on
the basis of an interpretation of certain ancient documents which indicated
that those two points lay "in the line of communication between Sarrare and
the Arauca"; (2) in the second part of the sixth sector, the King accepted
as title of sovereignty the Royal cedilla of 1786 and, holding that its
terms were not clear enough to fix the extreme limits of the sector, he
selected as boundary a line which, to the west of the Orinoco, followed the
rivers Casiquiare and Rio Negro referred to in the same Royal cedilla.
Thus, in that arbitration, the King did not make use of the power which was
granted to him in 1886 to depart from the legal line and to reach a decision
"in equity". He confined himself to seeking in other documents the names or
rivers which corresponded most nearly to the general lines of the boundaries
of the Royal titles.
The King rendered this arbitral award in 1891, and it is most probable that
Nicaragua and Honduras adopted the same formula in the Treaty of 1896, in
the conviction that the arbitrators would not interpret this authorization
otherwise than within the same limits which the King of Spain had observed
in 1891.
(c) Arbitration between Guatemala and Honduras
This arbitration was only agreed upon in 1930 and it shows that, twenty-four
years after the King of Spain's Award in the dispute between Honduras and
Nicaragua, the countries of that part of America insisted on arbitration on
the basis of strict law, refused to submit boundary questions to arbitration
by equity, and accepted compensations only on specific points and only if
they had been agreed upon by conciliation tribunals composed of
representatives of the parties to the dispute.
Article 5 of the agreement runs as follows:
"Art. 5.—The High Contracting Parties are agreed that the only line that can
be established, de jure, between their respective countries is that of the
uti possidetis of 1821. Consequently it is for the Tribunal to determine
this line. If the Tribunal finds that either Party has during its subsequent
development acquired beyond this line interests which must be taken into
consideration in establishing the final frontier, it shall modify as it may
consider suitable the line of the uti possidetis of 1821 and shall fix such
territorial or other compensation as it may deem equitable for one Party to
pay to the other."
This agreement insists on the rule of the uti possidetis as a condition
precedent, and does not authorize compensation except for territories agreed
upon in advance in accordance with the uti possidetis as being "beyond this
line", which is the legal one.
This right was moreover only conferred upon a conciliation tribunal of which
the members were to be appointed by the two countries, for as the Honduran
delegate, Dr. Mariano Vasquez, said at the meeting of 22 January 1930 at
Washington: [p 232]
"An arbitration tribunal is not set up, as is well known, to reconcile
interests, nor to do what is desired by one of the parties to the dispute,
but to dispense justice where justice is due.
International questions of fundamental importance for countries, such as
territorial boundaries, can only with difficulty be the subject of
conciliation procedure and even sometimes of arbitration, because the local
political effect that an adverse award might have is to be feared."
(d) Arbitration between Costa Rica and Nicaragua
Here the only authorization given, and not to the arbitrator but to a mixed
commission, was to "depart slightly from the line laid down so as to find a
natural boundary" (Treaty of 1858, Art. 3), a clause which, in the Treaty of
1886, was limited to one mile from the legal line.
The King could not disregard this order of importance—this hierarchy—of the
different rules of Article II, since as M. Maura stated in his Rejoinder
submitted to the King in 1905:
"The hierarchy of proofs is mandatory, and no public document of greater
value can be in contradiction with the legal title."
I cannot concur in the Court's opinion which, while stating that the King
had to follow the whole of Article II, on the one hand interprets paragraph
6 as an authorization conferred on the King and not on the Mixed Commission,
and on the other hand gives this paragraph a scope which would not confine
it to the power to grant compensations but which would also confer on the
arbitrator the right of settling the dispute by a compromise on the facts.
The authorization to grant compensations could not apply to the arbitration
by the King.
For the reasons developed by the Honduran delegate, Dr. Mariano Vasquez, at
Washington on 22 July 1930, the Latin American countries were not ready to
accept local compensations, once the legal line was fixed, unless they were
agreed upon by mixed commissions.
The King had all the powers laid down in the Gamez-Bonilla Treaty, but on
condition that that is understood to mean only those powers which were laid
down for the "arbitration" stage and not those for the preliminary
conciliation stage of the proceedings. Articles II, VII and IX of the
Treaty cannot be interpreted as meaning that the King had to "meet" with
anyone "at one of the border towns", that he was to record "in two special
books" the points of disagreement, to take "decisions by a majority vote",
or to "begin his studies before the rainy season".
Honduras itself rightly stated that not all the clauses of the Gamez-Bonilla
Treaty could be applicable to arbitration by the King and that certain of
them only concerned the arbitral tribunal. [p 233]
With regard to Article VI, for example, the President of Honduras in his
telegram of 22 October to the Spanish Minister in Central America said:
"The time-limits laid down in Article VI of the Boundaries Treaty between
Honduras and Nicaragua refer only to the Arbitral Tribunal... Signed
Bonilla" (Annex 5 to the Nicaraguan Rejoinder).
Just as the procedures laid down in Articles II, VII and IX referred to in
the previous paragraph could only apply to the conciliation procedure and
Article VI to the Arbitral Tribunal, as Presi-dent Bonilla states, in the
same way the authorization laid down in paragraph 6 f Article II could also
not apply to the King.
But, even allowing that paragraph 6 could be applicable also to the King, to
compensate does not mean to conciliate. The Dictionary of the Spanish
Academy gives as the meaning of "com-pensar": to equalize in an opposite
sense the effect of one thing with another. Therefore, compensation can only
be granted in respect of territories that are equivalent. There is no kind
of equivalence nor compensation as between the few hectares of the village
of Gracias a Dios and the whole northern basin of the Segovia River, and the
King made use of the power conferred by paragraph 6 not to grant
compensations but to settle the dispute as mediator or arbitrator of
conscience.
The interpretation of the relative importance of the rules laid down in
Article II can only be that uniformly accepted by all the American countries
which signed treaties containing similar articles, by the arbitrators who
were called upon to apply those rules, and by the King himself in his Award
of 1891 in the dispute between Colombia and Venezuela, and consequently the
King exceeded his powers by the improper application of paragraph 6 of
Article II of the Gámez-Bonilla Treaty.
(ii) The King committed essential errors related to the exceeding of powers
in the application of the uti possidetis juris rule
It is not for the Court to review the appreciation of the probative force of
the documents and other legal evidence submitted to the arbitrator.
But there is a great difference between the evaluation of evidence which lay
within the discretionary power of the arbitrator and that of essential error
committed by the King when he asserted that the Warrant which fixed the
boundaries was one which in fact did not fix any boundary.
Ours are neither appeal nor revision proceedings, and the Court cannot
discuss the choice which the King made of the Decree of 1791 to establish
the rights of sovereignty of the two countries in 1821.
Nor can the Court discuss the King's right to seek in previous Decrees the
boundaries of the provinces which did not figure in the Decree which he had
chosen. [p 234]
But on the other hand we can hold -prima facie that he committed a manifest
error or that he exceeded his powers in choosing, to fix the boundaries
which were lacking in the Decree of 1791, the two Decrees of 1745 which
expressly and formally stated that the Alcaldía of Tegucigalpa was excluded
from the boundaries referred to in those decrees.
The relevant text of the Decree of 1745 which, according to the arbitrator,
fixed the boundaries and which on the contrary excludes the Alcaldía Mayor
of Tegucigalpa is as follows:
"As regards the Alcaldía Mayor of Tegucigalpa ... you will refrain (and take
great pains to do so) from all meddling with the civil affairs of that
territory..." (Annex 54 to the Nicaraguan Counter-Memorial.)
This manifest error had already been noted when the same decrees were
studied by a tribunal consisting of Charles Evans Hughes, Luis Castro Ureña
and Emilio Bello, in the arbitration between Honduras and Guatemala, and by
the Spanish Council of State which declared in its Opinion:
"It may be considered as certain that the Royal Decrees of 1745 did not in
any way change the boundaries of Nicaragua and Honduras."
The King thus committed an essential error involving an excess of
jurisdiction in taking as proof of a title of sovereignty a Decree which the
Spanish Council of State had itself acknowledged to fix no boundary and
which, as we have seen, excluded the Alcaldía of Tegucigalpa.
(iii) The King exceeded his powers in recognizing juridical value to de
facto possession established by acts of jurisdiction
Paragraph 4 of Article II of the Gámez-Bonilla Treaty precluded the
recognition of "juridical value to de facto possession".
The Spanish Council of State explained in its Opinion that the Commission
appointed by the King had decided, in case of lack of proof of ownership, to
take into consideration acts of jurisdiction as being complementary to the
study of the royal provisions.
But acts of jurisdiction could not be used except as proofs of possession,
and came under the formal prohibition in paragraph 4 of Article II. And it
is acts of possession which the King allows when, in recitals 14 and 15, he
refers to the "expanding influence of Nicaragua" and to the "ephemeral"
nature of the extension of Honduran sovereignty.
This part of the Award is, prima facie, contrary to the formal prohibition
in paragraph 4 of Article II of the Treaty.
(iv) Absence of reasons
The majority of the Court holds that an examination of the Award shows that
it contains ample reasoning and explanations in support of its conclusions.
[p 235]
The greater part of the "recitals" in the Award merely indicate one by one
the arguments which were put forward by each of the Parties.
Inadequacy of reasons is quite as serious as lack of reasons. In the present
case, if the King had not found sufficient reasons to make a decision on the
basis of law, he should have declined to promulgate his Award, as he did in
1910 in the case between Ecuador and Peru, instead of affirming in recital
21 that his decision "best answered the purpose by reasons of historical
right, of equity and of a geographical nature..." but without indicating
either why or how.
This inadequacy of reasons is not in itself sufficient to entail the nullity
of the Award, but it confirms the exceeding of jurisdiction dealt with in
the foregoing paragraphs and the error com-mitted by the King in rejecting
the study of the other Royal titles submitted to him by the Parties.
(v) Obscurities and contradictions in the Award
Nicaragua has asked the Court to find that, even if it was valid, the Award
was not capable of execution by reason of its omissions, contradictions and
obscurities.
It is difficult to define which is the thalweg, the navigable arm or the
principal mouth of rivers which, on land still in process of formation,
often change their course. A court cannot give opinions on questions which
only engineers or technicians can decide. Like the Court, I do "not consider
that the Award is incapable of execution", since it is for mixed
commissions, or for any other authority to whom the Parties might entrust
the drawing of the boundary line, to settle problems which omissions,
contradictions or obscurities in the Award present.
II. Bearing of acquiescences or inaction on the fart of Nicaragua from igo6
to 1912
With regard to Nicaragua's inaction between the years 1906 and 1912, I would
make the following observations:
(a) As explained in the section on the legal considerations, the inaction of
any American State in respect of appeal for the nullity of an award could
only correspond to the state of evolution of international law at that
period and in that region.
(b) If even the Hague Conference of 1907, while accepting the principle of
the nullity of awards, refrained from endorsing it because it was not in a
position to designate an authority responsible for dealing with the appeal,
it is natural that at that period Nicaragua should have confined herself to
considering only the possibility of obtaining explanations or at most a
revision by the arbitrator himself. [p 236]
(c) As soon as the Nicaraguan Agent received the text of the Award, he
submitted a note of protest, dated 25 December 1906, a note which the
Spanish Government endeavoured to persuade him to withdraw.
In the months following, Nicaragua sought to bring an appeal so as to obtain
either explanations or a revision.
The rules admitted today only allow of revision in the case of the discovery
of a new fact; but long before the discussions as to allowing this means of
recourse in Europe, and before 1907, Brazil, Argentina, Paraguay, Uruguay,
Bolivia, Peru, Chile and later Colombia and Ecuador signed general bilateral
arbitration treaties which recognized the right of revision of the Award by
the same arbitrator in the case of "errors of fact resulting from the
proceedings". This concept of "revision" is certainly different from the
one accepted today, but in 1906 and 1907 it was a form of appeal accepted by
all the countries in the foregoing list. It is therefore understandable
that, at that period, Nicaragua only thought of proposing that form of
appeal. A too favourable circumstance obliged her however, as a matter of
tact and scruple, not to make any such appeal in the earlier years: M.
Maura, who was Nicaragua's Counsel during the arbitration proceedings,
became Prime Minister of Spain shortly after the Award of 23 December 1906,
and it would have been neither proper nor admissible, as Minister Gamez
explained, to ask her own Counsel, now become Prime Minister, to suggest to
the King that he should revise the Award.
Other historical facts also show that Nicaragua and Honduras between 1906
and 1912 believed in good faith that the problem of the carrying out of the
Award would not even arise.
It was only in 1911 that the question of the carrying out of the Award was
raised for the first time by Honduras and that Nicaragua declared that it
was a nullity and later proposed arbitration to decide as to its validity.
The theory of estoppel cannot be invoked against Nicaragua because she had
not brought a nullity appeal between 1906 and 1912, unless it is also
invoked against Honduras who, during the same period, seemed to have
renounced requiring the carrying out of the Award. It cannot be said that
Nicaragua's attitude between 1906 and 1912 caused Honduras to believe that
the Award was accepted.
(d) From 1912 to 1957 Nicaragua continually proposed to submit the
verification of the validity of the King's Award to fresh arbitration. In
1914 she proposed arbitration by the President of the United States of
America. In 1918 she accepted the proposal made by President Bertrand of
Honduras to submit the question to President Wilson, but Honduras withdrew
her offer. Nicaragua accepted but Honduras refused to accept the arbitration
proposals put forward by the Department of State of the United States of
America in 1921 and 1923 and the proposal put forward by Nica-[p 237]ragua
to the commission of mediation of Costa Rica, the United States of America
and Venezuela in 1937-1938. The Irias-Ulloa Protocol which, on the other
hand, accepted the carrying out of the Award, was signed in 1931 by the
Nicaraguan Government, but was not ratified by the Nicaraguan Parliament.
The verification of the validity of the Award could not be submitted to the
decision of an international court before 1957 because Honduras maintained
that Article VI of the Pact of Bogota did not allow the Court to deal with
questions "already settled" by arbitral awards within the framework of
compulsory jurisdiction. It was not until 1957 that through the intervention
of the Organization of American States Honduras accepted the Court's
jurisdiction. All these facts have been mentioned during the oral
proceedings by the Nicaraguan Agent without Honduras having raised any
objections.
As to the acquiescences relied upon by the Court, they do not constitute a
formal renunciation of the right to challenge the validity of the Award.
(a) President Zelaya's telegram of 25 December to the President of Honduras
does not fulfil the requirements of proof of renunciation of a nullity
appeal.
(b) The note sent by Minister Gamez to the Spanish Charge d'affaires on 9
January 1907, as he himself explained to Minister Medina on the twenty-first
of the same month, was a mere acknowledgment and conventional expression of
respectful thanks to the King, since M. Medina had already on 25 December
submitted his note of protest direct to the Minister of State at Madrid.
(c) The publication of the complete text of the Award in the Nicaraguan
Official Journal on 28 January 1907 cannot be upheld as an argument, since
publications given by way of information in the newspapers, even if they are
official, have never yet been considered as proofs of engagements on the
part of States.
(d) The declaration made by the President of Nicaragua to the Nicaraguan
Assembly on 1 December 1907 cannot be held as a proof of renunciation of
bringing an appeal against the Award. On the contrary it implies such an
appeal, since it ends with the following sentence:
"... it has instructed Minister Crisanto Medina to request a clarification
of a few points in this decision which are obscure and even contradictory…”
(e) The report to the National Assembly of 26 December 1906 could only have
constituted a proof of renunciation of disputing the validity of the Award
if the Government had expressly so stated and the Assembly had approved that
renunciation. But on the contrary, in this report it is said: [p 238]
"Unfortunately, in this arbitral Award, as in so many similar cases,
so-called political expediency, that is to say the very simple device of
bisecting the dispute in order to prove to the Parties that the arbitrator
has the same consideration and esteem for both of them, has prevailed over
legal arguments and historical bases."
This report thus takes note of the exceeding of jurisdiction in the Award
and cannot be considered as a renunciation of contesting it.
(f) The approval given by the Nicaraguan Legislative Assembly on 14 January
1908 of "the acts of the executive power in the field of foreign affairs
between 1 December 1905 and 26 December 1907" has never legally existed. The
photostatic copy of the Official Journal submitted to the Court shows that
the Foreign Affairs Committee of the Assembly submitted a draft resolution
in that sense, a draft which only had a first reading, but which was never
discussed in a-second reading nor definitively approved. If the proposal had
been approved, then it would inevitably also cover the note of protest from
Minister Medina of 25 December 1906, the instructions sent to M. Medina by
the notes of 1 February 1907 from President Zelaya and of 21 February and 14
October from Minister Gamez, instructing him to ask for "explanations" and,
if possible, even the "revision" (reforma) of the Award.
(g) As Minister of the Interior, General Moncada neither was nor could be
the competent organ to pledge his country's responsibility in the matter of
a nullity appeal against an arbitral award, and his telegram of 23 March
1911 cannot therefore be held as proof of renunciation of a nullity appeal.
(h) The Note of Honduras dated 25 April 1911, and signed by the Foreign
Minister, cannot in any way commit Nicaragua. The text of the Nicaraguan
reply to that Note might possibly have committed Nicaragua, but in fact the
only reply was a note dated 27 November 1911 by M. Chamorro to the Honduran
Charge d'affaires, M. Medal, in which he confined himself to stating that he
had not concluded his study of the question.
(i) The information sent on 8 September 1911 by the Honduran Charge
d'affaires, M. Medal, to his Minister regarding his visit to M. Chamorro was
not a Note coming from Nicaragua but from a Honduran official, and cannot
therefore be a proof serving to show Nicaragua's renunciation of disputing
the Award.
There is thus, in these documents or declarations, no proof of renunciation
on the part of Nicaragua of disputing the validity of the Award, the
intrinsic defects of which in my opinion entail its nullity.
Certain of these declarations might indicate the intention to accept the
Award but none of them can be adopted as proof of [p 239] "an undertaking by
a State" to renounce its right to challenge the validity of the Award within
the meaning required by the rules of law set out in Chapter I.
For the foregoing reasons, I arrive at the conclusion that the intrinsic
defects studied in Chapter IV entail the nullity of the arbitral Award made
by the King of Spain on 23 December 1906.
(Signed) Urrutia Holguin. |
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