|
[p.69]
THE COURT,
composed as above,
delivers the following Judgment:
1. On 28 July 1986, the Ambassador of the Republic of Nicaragua to the
Netherlands filed in the Registry of the Court an Application instituting
proceedings against the Republic of Honduras in respect of a dispute
concerning the alleged activities of armed bands, said to be operating from
Honduras, on the border between Honduras and Nicaragua and in Nicaraguan
territory. In order to found the jurisdiction of the Court the Application
relied on the provisions of Article XXXI of the American Treaty on Pacific
Settlement, officially known, according to Article LX thereof, as the "Pact
of Bogota", signed on 30 April 1948, and the declarations made by the two
Parties accepting the jurisdiction of the Court as provided for in Article
36, paragraphs 1 and 2 respectively, of the Statute of the Court.
2. Pursuant to Article 40 paragraph 2, of the Statute, the Application was
at once communicated to the Republic of Honduras; in accordance with
paragraph 3 of that Article, all other States entitled to appear before the
Court were notified of the Application.
3. By a letter of 29 August 1986, the Minister for External Relations of
Honduras informed the Court that in his Government's view the Court had no
jurisdiction over the matters raised in the Application, and expressed the
hope that the Court would confine the first written proceedings to the
issues of jurisdiction and admissibility. The Parties, consulted pursuant to
Article 31 of the Rules of Court, subsequently agreed that the issues of
jurisdiction and admissibility should be dealt with at a preliminary stage
of the proceedings.
4. By an Order dated 22 October 1986, the Court, taking note of the
agreement of the Parties on the procedure, decided that the first pleading
should be a Memorial by the Republic of Honduras dealing exclusively with
the issues of jurisdiction and admissibility; and that in reply the Republic
of Nicaragua should submit a Counter-Memorial confined to those same issues;
and fixed time-limits for those pleadings. The Memorial and Counter-Memorial
were filed within the relevant time-limits.
5. On 3 November 1986 the Registrar informed the States parties to the Pact
of Bogota that he had been directed, in accordance with Article 43 of the
Rules of Court, to draw to their notice the fact that in the Application the
Republic of Nicaragua had invoked, inter alia, the Pact of Bogota, adding
however that the notification did not prejudge any decision which the Court
might be called upon to take pursuant to Article 63 of the Statute of the
Court.
6. By a letter of 21 July 1987 the Registrar drew the attention of the
Secretary-General of the Organization of American States to Article 34,
paragraph 3, of the Statute of the Court and to the Preamble to the Pact of
Bogota whereby that instrument was stated to be concluded "in fulfillment of
Article XXIII of the Charter of the Organization of American States". The
Registrar went on to inform the Secretary-General of the Organization of
American States that the Court, pursuant to Article 69, paragraph 3, of the
Rules of Court, had instructed him to communicate to that Organization
copies of all the written proceedings. The Secretary-General of the
Organization was at the same time informed of the time-limit fixed for any
observations the Organization might wish to submit, pursuant to that Article
of the Rules of Court. [p 72]
7. By a letter of 29 July 1987, the Secretary-General of the Organization of
American States informed the Registrar that in his opinion he would not as
Secretary-General have the authority to submit observations on behalf of the
Organization, and that the convening of the Permanent Council of the
Organization would require each member State to be provided with copies of
the pleadings; he recorded his understanding, however, that the Court had
notified all parties to the Pact of Bogota of the fact that the proceedings
appeared to raise questions of the construction of that instrument.
8. By a joint letter dated 13 August 1987, the Agents of the two Parties
informed the Court of an agreement concluded between the Presidents of the
two countries on 7 August 1987, whereby both Parties would request the
Courts "to accept the adjournment, for a period of three months, of the
opening of the oral proceedings on the question of jurisdiction to be heard,
inter alia, by the Court". That agreement provided further that the
situation would be reviewed by the two Presidents on the occasion of a
meeting to be held 150 days later. The Parties were informed by the
Registrar the same day that the President of the Court had decided, in
application of Article 54 of the Rules of Court, to adjourn the opening of
the oral proceedings to a later date to be fixed after consultation with the
Agents of the Parties.
9. After the Agent of Honduras had, by a letter dated 1 February 1988,
informed the Court of a meeting between the Presidents of the Central
American countries held in San Jose, Costa Rica, on 16 January 1988, it was
decided, after the Parties had been consulted, to prolong the postponement
of the opening of the oral proceedings.
10. On 21 March 1988 the Government of Nicaragua filed in the Registry a
request for the indication of provisional measures under Article 41 of the
Statute of the Court and Article 73 of the Rules of Court. This request was
forth-with communicated to the Government of Honduras: By letter of 31 March
1988 the Agent of Nicaragua informed the Court that the Government of
Nicaragua had instructed him to withdraw the request for the indication of
provisional measures. By an Order "dated the same day the President of the
Court placed on record that withdrawal.
11. By a letter of 12 April 1988, the Agent of Honduras requested that oral
proceedings on the questions of jurisdiction and admissibility should be
held between 23 May and 10 June 1988. Following a meeting between the
President of the Court and the Agents of the Parties on 20 April 1988, at
which the Agent of Nicaragua indicated that his Government had no objection
to the dates suggested by Honduras, the President decided that the oral
proceedings should begin on 6 June 1988.
12. At public hearings held between 6 and 15 June 1988, the Court heard oral
arguments addressed to it by the following:
For Honduras: H.E. Mr, Mario Carias,
H.E. Mr. J. R. Hernandez Alcerro,
Professor D. W. Bowett,
Professor P.-M. Dupuy.
For Nicaragua: H.E. Mr. Carlos Arguello Gomez,
Professor Abram Chayes,
Professor A. Pellet,
Professor I. Brownlie.
In the course of the hearings, questions were put to both Parties by Members
of the Court Replies were given to some extent orally during the hearings;
addi-[p 73]tional replies in writing were filed in the Registry within a
time-limit fixed under Article 72 of the Rules of Court. Honduras availed
itself of the opportunity afforded by that Article to submit to the Court
comments on the written replies of Nicaragua.
**
13. In the course of the written proceedings, the following submissions were
presented by the Parties:
On behalf of the Republic of Honduras,
in the Memorial:
"In view of the facts and arguments set forth in the preceding parts of this
Memorial, the Government of Honduras requests that it may please the Court
to adjudge and declare that:
As to Admissibility:
The Application of Nicaragua is inadmissible because:
1. It is a politically-inspired, artificial request which the Court should
not entertain consistently with its judicial character.
2. The Application is vague and the allegations contained in it are not
properly particularized, so that the Court cannot entertain the Application
without substantial prejudice to Honduras.
3. Nicaragua has failed to show that, in the opinion of the Parties, the
dispute cannot be settled by direct negotiations, and thus Nicaragua fails
to satisfy an essential precondition to the use of the procedures
established by the Pact of Bogota, which include reference of disputes to
the International Court of Justice.
4. Having accepted the Contadora process as a 'special procedure' within the
meaning of Article II of the Pact of Bogota, Nicaragua is precluded both by
Article IV of the Pact and by elementary considerations of good faith from
commencing any other procedure for pacific settlement until such time as the
Contadora process has been concluded; and that time has not arrived.
As to Jurisdiction:
The Court is not competent to entertain the Application of Nicaragua
because:
1. The dispute as alleged by Nicaragua is excluded from the jurisdiction of
the Court by the terms of the Honduran declaration of 22 May 1986, and such
declaration applies whether the jurisdiction is alleged to exist on the
basis of Article XXXI of the Pact of Bogota or Article 36, paragraph 2, of
the Statute of the Court.
2. Alternatively, Article XXXI cannot be invoked as a basis of jurisdiction
independently of Article XXXII and the latter Article precludes any
unilateral application to the Court except where:
(a) conciliation procedures have been undergone without a solution, and
(b) the parties have not agreed on an arbitral procedure.
Neither condition is satisfied in the present case. [p 74]
3. Jurisdiction cannot be based on Article 36, paragraph 1, of the Statute
of the Court because States parties to the Pact of Bogota have agreed in
Article XXXII that a unilateral Application, based on the Pact of Bogota,
can only be made when the two conditions enumerated in (a) and (b),
paragraph 2 above, have been satisfied, and such is not the case with the
Application of Nicaragua."
On behalf of the Republic of Nicaragua,
in the Counter-Memorial:
"A. On the basis of the foregoing facts and arguments the Government of
Nicaragua respectfully asks the Court to adjudge and declare that:
1. For the reasons' set forth in this Counter-Memorial the purported
modifications of the Honduran Declaration dated 20 February 1960, contained
in the 'Declaration' dated 22 May 1986, are invalid and consequently the
'reservations' invoked by Honduras in its Memorial are without legal effect.
2. Alternatively, in case the Court finds that the modifications of the
Honduran 'Declaration' dated 22 May 1986 are valid, such modifications
cannot be invoked as against Nicaragua because on the facts Nicaragua did
not receive reasonable notice thereof.
3. Without prejudice to the foregoing submissions, the 'reservations'
invoked by Honduras are not applicable in any event in the circumstances of
the present case thus --
(a) the dispute to which the Application of Nicaragua relates is not the
subject of any agreement by the Parties to resort to other means for the
pacific settlement of disputes; and, in particular, neither the Contadora
process nor the provisions of the Pact of Bogota constitute the 'other
means' to which the pertinent reservation refers;
(b) the dispute to which the Application of Nicaragua relates is not a
dispute 'relating to facts or situations originating in armed conflicts or
acts of a similar nature which may affect the territory of the Republic of
Honduras, and in which it may find itself involved directly or indirectly',
and, in the alternative, the 'reservation' in question does not possess, an
exclusively preliminary character and therefore the issue of its application
is postponed for determination at the stage of the Merits.
4. The 'reservations' invoked by Honduras are not applicable in any event to
the provisions of Article XXXI of the Pact of Bogota, which provides an
independent basis of jurisdiction within the framework of Article 36,
paragraph 1, of the Statute of the Court.
5. The application of the provisions of Article XXXI of the Pact of Bogota
is not, subject either to the conciliation procedure referred to in Article
XXXII of the Pact, exhaustion of which is a condition of recourse to the
Court exclusively within the context of Article XXXII, or to the "condition
of an agreement upon an arbitral procedure which relates exclusively to
Article XXXII.
6. The grounds of inadmissibility of the Application alleged to derive [p
75] from the provisions of Articles II and IV of the Pact of Bogota have no
legal basis.
7. All the other, grounds of inadmissibility alleged in the Honduran
Memorial have no legal basis and must be rejected.
B. As a consequence of these conclusions the Government of Nicaragua
respectfully asks the Court to adjudge and declare that:
1. The Court is competent in respect of the matters raised in the
Application submitted by the Government of Nicaragua on 28 July 1986.
2. The competence of the Courts exists by virtue of the Honduran Declaration
dated 20, February 1960 accepting the jurisdiction of the Court in
conformity with the provisions of Article 36, paragraph 2, of the Statute of
the Court; or (in case the Declaration of 1960 has been validly modified)
the Honduran Declaration of 1960 as modified by the Declaration dated 22 May
1986, and the Nicaraguan Declaration dated 24 September 1929; and/or by
virtue of the provisions of Article XXXI of the Pact of Bogota and Article
36, paragraph 1, of the Statute of the Court.
3. The Application of Nicaragua is admissible.
C. For these reasons the Government of Nicaragua respectfully asks the Court
to declare that it has jurisdiction or, alternatively, to reserve any
question which does not possess an exclusively preliminary character for
decision at the stage of the merits.
D. In respect of all questions of fact referred to in the Memorial of
Honduras not expressly considered in the present Counter-Memorial, the
Government of Nicaragua reserves its position."
14. In the course, of the oral proceedings, each Party confirmed its
submissions as made in the Memorial and Counter-Memorial respectively,
without modification.
***
15. The present phase of the proceedings is devoted, in accordance with the
Order made by the Court on 22 October 1986, to the issues of the
jurisdiction of the Court and the admissibility of the Application. Honduras
has in its submissions contended, first that "the Application of Nicaragua
is inadmissible" and, secondly, that "the Court is not competent to
entertain" that Application; the Court will however first examine the
question of jurisdiction before proceeding, if it finds that it is
competent, to examine the issues of admissibility.
**
16. The Parties have devoted some argument to a question defined by them as
that of the burden of proof whether it is for Nicaragua to show the
existence of jurisdiction for the Court to deal with its claims, or for
Honduras to establish the absence of such jurisdiction. Each of them, has
cited, in support of its contention, the Court's dictum that "it is the
litigant [p 76] seeking to establish a fact who bears the burden of proving
it" (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), I.C.J. Reports 1984, p.437, para.
101).
The existence of jurisdiction of the Court in a given case is however not a
question of fact, but a question of law to be resolved in the light of the
relevant facts. The determination of the facts may raise questions of proof.
However the facts in the present case -- the existence of the Parties'
declarations under Article 36 of the Statute, the signature and ratification
of the Pact of Bogota, etc. -- are not in dispute; the issue is, what are
the legal effects to be attached to them? The question is whether in case of
doubt the Court is to be deemed have jurisdiction or not. This question has
already been considered by the Permanent Court of International Justice in
the case concerning the Factory at Chorzow, Jurisdiction, when it observed:
"It has been argued repeatedly in the course of the present proceedings that
in case of doubt the Court should decline jurisdiction. It is true that the
Court's jurisdiction is always a limited one, existing only in so far as
States have accepted it; consequently, the Court will, in the event of
objection -- of when it has automatically to consider the question -- only
affirm its jurisdiction provided that the force of the arguments militating
in favour of it is preponderant. The fact that weighty arguments can be
advanced to support the contention that' it has no jurisdiction cannot of
itself create a doubt calculated to upset its jurisdiction. When considering
whether it has jurisdiction or not, the Court's aim is always to ascertain
whether an intention on the part of the Parties exists to confer
jurisdiction upon it." (P.C.I.J., Series A, No. 9, p. 32.)
The Court will therefore in this case have to consider whether the force of
the arguments militating in favour of jurisdiction is preponderant, and to
"ascertain whether an intention on the part of the Parties exists to confer
jurisdiction upon it".
**
17. In its Application instituting proceedings in this case, Nicaragua
refers, as basis of the jurisdiction of the Court, to
"the provisions of Article XXXI of the Pact of Bogota and to the
Declarations made by the Republic of Nicaragua and by the Republic of
Honduras respectively, accepting the jurisdiction of the Court as provided
for in Article 36, paragraphs 1 and 2, respectively of the Statute"
of the Court. In the submissions presented by Nicaragua in the
Counter-Memorial it is contended more specifically that [p 77]
"The competence of the Court exists by virtue of the Honduran Declaration
dated 20 February 1960 accepting the jurisdiction of the Court in conformity
with the provisions of Article 36, paragraph 2, of the Statute of the Court;
or (in case the Declaration of 1960 has been validly modified) the Honduran
declaration of 1960 as modified by the Declaration dated 22 May 1986, and
the Nicaraguan Declaration dated 24 September 1929; and/or by virtue of the
provisions of Article XXXI of the Pact of Bogota and Article 36, paragraph
1, of the Statute of the Court."
18. The Pact of Bogota was drafted and adopted at the Bogota Conference in
1948, at the same time as the Charter of the Organization of American States
(OAS). Among the purposes of the OAS as proclaimed in Article 2 of the
Charter was the following:
"(b) to prevent possible causes of difficulties and to ensure the pacific
settlement of disputes that may arise among the Member States."
One Chapter of the Charter was devoted to Pacific Settlement of Disputes,
and consisted of four Articles, originally numbered 20 to 23, which read as
follows:
"Article 20
All international disputes that may arise between American States shall be
submitted to the peaceful procedures set forth in this Charter, before being
referred to the Security Council of the United Nations.
Article 21
The following are peaceful procedures: direct negotiation, good offices,
mediation, investigation arid conciliation, judicial settlement,
arbitration, and those which the parties to the dispute may especially agree
upon at any time.
Article 22
In the event that a dispute arises between two or more American States
which, in the opinion of one of them, cannot be settled through the usual
diplomatic channels, the parties shall agree on some other peaceful
procedure that will enable them to reach a solution.
Article 23
A special treaty will establish adequate procedures for the pacific
settlement of disputes and will determine the appropriate means for their
application, so that no dispute between American States shall fail of
definitive settlement within a reasonable period." [p 78]
The Charter, was amended by the Protocol of Buenos Aires in 1967, and
further amended by the Protocol of Cartagena de Indias in 1988. Nicaragua
and Honduras are parties to the Charter, as successively amended.
19. The "special treaty" referred to in Article 23 of the Charter, quoted
above, is the Pact of Bogota, which states in its Preamble that it was
concluded "in fulfillment Article XXIII of the Charter". Nicaragua and
Honduras have since 1950 been parties to the Pact, in the case of Honduras
without reservation; Nicaragua appended a reservation to its signature to
the Pact, which it maintained at the time of ratification. The purpose of
the reservation was to reserve the
"position assumed by the Government of Nicaragua with respect to arbitral
decisions the validity of which it has contested on the basis of the
principles of international law, which clearly permit arbitral decisions to
be attacked when they are adjudged to be null or invalidated".
It has not been contended that that reservation (to be referred to in
another context below, paragraph 40) in itself deprives the Court of any
jurisdiction in this case which it might have by virtue of the Pact.
20. Article XXXI of the Pact, upon which Nicaragua relies to found
jurisdiction, provides as follows:
"In conformity with Article 36, paragraph 2, of the Statute of the
International Court of Justice, the High Contracting Parties declare that
they recognize, in relation to any other American [21] State, the
jurisdiction of the Court as compulsory ipso facto, without the necessity of
any special agreement so long as the present Treaty is in force, in all
disputes of a juridical nature that arise among them concerning:
(a) The interpretation of a treaty;
(b) Any question of international law;(c) The existence of any fact which,
if established, would constitute the breach of an international obligation;
(d) The nature or extent of the reparation to be made for the breach of an
international obligation."
21. The other basis of jurisdiction relied on by Nicaragua is constituted by
the declarations of acceptance of compulsory jurisdiction made by the
Parties under Article 36 of the Statute of the Court.
The jurisdiction of the Court under Article 36, paragraph 2, of its Statute
has been accepted by Honduras, initially by a Declaration made on 2 February
1948, and deposited with the Secretary General of the United Nations on 10
February 1948, in the following terms:
[Translation from the Spanish]
"The Executive of the Republic of Honduras, with due authorization from the
National Congress granted by Decree Number Ten of the nineteenth of
December, nineteen hundred and forty-seven, and [p 79] in conformity with
paragraph two of Article thirty-six of the Statute of the International
Court of Justice,
Hereby declares:
That it recognizes as compulsory ipso facto and without special agreement,
in relation to any other State accepting the same obligation, the
jurisdiction of the International Court of Justice in all legal disputes
concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a
breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an
international obligation.
This declaration is made on condition of reciprocity and for a period of six
years from the date of the deposit of the declaration with the
Secretary-General of the United Nations.
National Palace, Tegucigalpa, D.C., the second of February, nineteen hundred
and forty-eight." (I.C.J. Yearbook 1947-1948, p. 129.)
22. On 24 May 1954, the Government of Honduras deposited with the
Secretary-General of the United Nations a Declaration renewing the
Declaration of 2 February 1948, "for a period of six years, renewable by
tacit reconduction".
23. The Honduran acceptance of jurisdiction was further renewed, this time
"for an indefinite term", by a Declaration dated, 20 February 1960, and
deposited with the Secretary-General of the United Nations on 10 March 1960
("the 1960 Decimation"):
[Translation from the Spanish]
"The Government of the Republic of Honduras, duly authorized by the National
Congress, under Decree No. 99 of 29 January 1960, to renew the Declaration
referred to in Article 36(2) of the Statute of the International Court of
Justice, hereby declares:
1. That it renews the Declaration made by it for a period of six years on 19
April 1954 and deposited with the Secretary-General of the United Nations on
24 May 1954, the term of which will expire on 24 May 1960; recognizing as
compulsory ipso facto and without special agreement, in relation to any
other State accepting the same obligation, the jurisdiction of the
International Court of Justice in all legal disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a
breach of an international obligation;
(d) the nature and extent of the reparation to be made for the breach of an
international obligation.
2. This new Declaration is made on condition of reciprocity, for an
indefinite term, starting from the date on which it is deposited with the
Secretary-General of the United Nations.
National Palace, Tegucigalpa, D.C., 20 February 1960." (I.C.J. Yearbook
1959-1960, p. 241.)
24. As noted in paragraph 17 above, Nicaragua claims to be entitled to found
jurisdiction on the 1960 Declaration. Honduras asserts that that Declaration
has been modified by a subsequent Declaration, made on 22 May 1986 ("the
1986 Declaration"), which it had deposited with the Secretary-General of the
United Nations prior to the filing of the Application by Nicaragua. The 1986
Declaration is worded as follows:
[Translation from the Spanish]
"The Government of the Republic of Honduras, duly authorized by the National
Congress under Decree No. 75-86 of 21 May 1986 to modify the Declaration
made on 20 February 1960 concerning Article 36, paragraph 2, of the Statute
of the International Court of Justice, hereby declares that it modifies the
Declaration made by it on 20 February 1960 as follows:
1. it recognizes as Compulsory ipso facto and without special agreement, in
relation to any other State accepting the same obligation, the jurisdiction
of the International Court of Justice in all legal disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a
breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an
international obligation.
2. This Declaration shall not apply, however, to the following disputes to
which the Republic of Honduras may be a party:
(a) disputes in respect of which the parties have agreed or may agree to
resort together means for the pacific settlement of disputes;
(b) disputes concerning matters subject to the domestic jurisdiction of the
Republic of Honduras under international law; [p 81]
(c) disputes relating to facts or situations originating in aimed conflicts
or acts of a similar nature which may affect the territory of the Republic
of Honduras, and in which it may find itself involved directly or
indirectly;
(d) disputes referring to:
(i) territorial questions with regard to sovereignty over islands shoals and
keys; internal waters, bays, the territorial sea and the legal status and
limits there of;
(ii) all rights of sovereignty or jurisdiction concerning the legal status
and limits of the contiguous zone, the exclusive economic zone and the
continental shelf;
(iii) the airspace over the territories, waters and zones referred to in
this subparagraph.
3. The Government of Honduras also reserves the right at any time to
supplement, modify or with draw this Declaration or the reservations
contained therein by giving notice to the Secretary-General of the United
Nations.
4. This Declaration replaces the Declaration made by the Government of
Honduras on 20 February 1960.
National Palace, Tegucigalpa, D.C., 22 May 1986." (I.C.J. Yearbook
1985-1986, pp. 71-72.)
25. In order to be able to show that it is a "State accepting the same
obligation" as Honduras within the meaning of Article 36; paragraph 2, of
the Statute, Nicaragua relies on the declaration which, as a Member of the
League of Nations it made at the time of signature of the Protocol of
Signature of the Statute of the Permanent Court of International Justice,
and which read as follows:
[Translation from the French]
"On behalf of the Republic of Nicaragua I recognize as compulsory
unconditionally the jurisdiction of the Permanent Court of International
Justice.
Geneva, 24 September 1929."
Nicaragua relies further on paragraph 5 of Article 36 of the Statute of the
present Court, which provides that:
"Declarations made under Article 36 of the Statute of the Permanent Court of
International Justice and which are still in force shall be deemed, as
between the parties to the present Statute, to be acceptances of the
compulsory jurisdiction of the International Court of Justice for the period
which they still have to run and in accordance with their terms." [p 82]
Nicaragua recalls finally that the Court, in its Judgment in the cage
concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States Of America), Jurisdiction and Admissibility
(I.C.J. Reports 1984, p. 441, para. 110), found that "the Nicaraguan
Declaration of 24 September 1929 is valid", and according to Nicaragua, that
Declaration is currently in effect.
26. It is, in short, claimed by Nicaragua that there exist two distinct
titles of jurisdiction. It asserts that the Court could entertain the case
both on the basis of Article XXXI of the Pact of Bogota and on the basis of
the declarations of acceptance of compulsory jurisdiction made by Nicaragua
and Honduras under Article 36 of the Statute.
27. Since, in relations between the States parties to the Pact of Bogota,
that Pact governing the Court will first examine the question whether it has
jurisdiction under Article XXXI of the Pact.
**
28. Honduras maintains in its, Memorial that the Pact "does not provide any
basis for the jurisdiction of the . . . Court". It does not contend that the
present dispute by its nature falls outside the scope of the provision of
Article XXXI itself but argues that that Article nevertheless dose not
confer jurisdiction on the Court in the present case, and puts forward two
objections to that effect.
29. Honduras first draws attention to the fact that Article XXXI begins with
the words, "In conformity with Article 36, paragraph 2, of the Statute of
the International Court of Justice", and that the wording of the rest of the
Article is almost identical with that of Article 36, paragraph 2. It
contends that the interpretation of Article XXXI Which is at once the most
simple, the most logical and the most consistent with the literal wording of
the Pact is that it "contains a jurisdiction which can be more precisely
defined by means of a unilateral declaration" under Article 36, paragraph 2,
of the Statute, by each party to the Pact; and that the seisin of the Court
is "subject to the terms in which the jurisdiction of the Court has been
acknowledged by the parties to the dispute" in such declarations. According
to Honduras,
“Under the most literal, and therefore the most simple, interpretation of
the terms of the Pact, Article XXXI, in establishing the obligatory
jurisdiction of the Court, at the same time requires the additional
subscription by each of the Parties, of a unilateral declaration of
acknowledgement of its jurisdiction, as provided for by Article 36.2 of the
Statute of the Court, to which Article XXXI of the Pact makes express
reference. The reservations attached to such declarations, as in the case of
the declaration of Honduras of 22 May 1986 [quoted in paragraph 24 above],
therefore apply both in the context of the application of Article? XXXI and
on the sole basis of the Honduran declaration itself."[p 83]
In the contention of Honduras, the reservations attached to the 1986
Declaration are such as to exclude the present case from the scope of the
jurisdiction conferred under Article 36, paragraph 2, by the Declaration.
Accordingly it maintains that the Court has no jurisdiction in the case
under Article XXXI either.
30. At this stage, Honduras's interpretation of Article XXXI of the Pact was
thus that it imposed an obligation to make an optional-clause declaration,
and that, in the absence of such a declaration, no jurisdiction existed
under that Article. The interpretation of Article XXXI espoused by Honduras
was, however, elaborated during the oral arguments and in its replies to
questions put by a Member of the Court First, Honduras conceded that it was
"arguable that such a declaration was not necessary, and that Article XXXI
operated by its own force, on its own terms, and without need of any
companion declaration". Honduras subsequently contended that Article XXXI is
an incorporation into the Pact of the system of recognition of the Court's
jurisdiction under the regime of the "optional clause", i.e., Article 36,
paragraph 2, of the Statute.
Consequently, Honduras considers that States parties to the Pact may choose
either to take no further action, in which case Article XXXI itself operates
as a joint acceptance of jurisdiction under Article 36, paragraph 2, free of
reservations and conditions other than the basic condition of reciprocity;
or to make a declaration under Article 36, paragraph 2. According to
Honduras, if that declaration contains no reservations, while it will
operate in relation to States non-parties to the Pact which have made
declarations under the optional clause, it will not modify the situation
vis-a-vis other States parties to the Pact, in relation to whom the
declarant State is already bound by the joint declaration embodied in
Article XXXI. If such a declaration contains reservations, however,
"it will then be the terms of that declaration which will indicate what is,
as far as those States are concerned, the extent of the jurisdiction of the
Court established in Article XXXI of the Pact".
31. In short, Honduras has consistently maintained that, for a State party
to the Pact which has made a declaration under Article 36, paragraph 2, of
the Statute, the extent of the jurisdiction of the Court under Article XXXI
of the Pact is determined by that declaration, and by any reservations
appended to it. It has also maintained that any modification or withdrawal
of such a declaration which is valid under Article 36, paragraph 2, of the
Statute is equally effective under Article XXXI of the Pact.
Honduras has, however, given two successive interpretations of Article XXXI,
claiming initially that it must be supplemented by a declaration of
acceptance of compulsory jurisdiction and subsequently that it can be so
supplemented but need not be. [p 84]
32. The first interpretation advanced by Honduras -- that Article XXXI must
be supplemented by a declaration -- is incompatible with the actual terms of
the Article. In that text, the parties "declare that they recognize" the
Court's jurisdiction "as compulsory ipso facto" in the cases there
enumerated. Article XXXI does not subject that recognition to the making of
a new declaration to be deposited with the United Nations Secretary-General
in accordance with Article 36, paragraphs 2 and 4, of the Statute. It is
drafted in the present indicative tense, and thus of itself constitutes
acceptance of the Court's jurisdiction.
33. Turning to the second Honduran interpretation, the Court may observe at
the outset that two possible readings of the relationship between Article
XXXI and the Statute have been proposed by the Parties. That Article has
been seen either as a treaty provision conferring jurisdiction upon the
Court in accordance with Article 36, paragraph 1, of the Statute, or as a
collective declaration of acceptance of compulsory jurisdiction under
paragraph 2 of that same Article.
Honduras has advanced the latter reading. Nicaragua, after asserting in
1984, in the case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), that Article XXXI
constituted a declaration under Article 36, paragraph 2, of the Statute, has
argued in the present case that Article XXXI falls under Article 36,
paragraph 1, and therefore confers jurisdiction on the Court on a
conventional basis.
34. There is however no need to pursue this argument. Even if the Honduran
reading of Article XXXI be adopted, and the Article be regarded as a
collective declaration of acceptance of compulsory jurisdiction made in
accordance with Article 36, paragraph 2, it should be observed that that
declaration was incorporated in the Pact of Bogota as Article XXXI.
Accordingly, it can only be modified in accordance with the rules provided
for in the Pact itself. Article XXXI nowhere envisages that the undertaking
entered into by the parties to the Pact might be amended by means of a
unilateral declaration made subsequently under the Statute, and the
reference to Article 36, paragraph 2, of the Statute is insufficient in
itself to have that effect.
The fact that the Pact defines with precision the obligations of the parties
lends particular significance to the absence of any indication of that kind.
The commitment in Article XXXI applies ratione materiae to the disputes
enumerated in that text; it relates ratione personae to the American States
parties to the Pact; it remains valid ratione temporis for as long as that
instrument itself remains in force between those States.
35. Moreover, some provisions of the Treaty restrict the scope of the
parties' commitment. Article V specifies that procedures under the Pact "may
not be applied to matters which, by their nature, are within the domestic
jurisdiction of the State". Article VI provides that they will likewise not
apply
"to matters already settled by arrangement between the parties, or by [p 85]
arbitral award or by decision of an international court, or which are
governed by agreements or treaties in force on the date of the conclusion of
the present Treaty".
Similarly, Article VII lays down specific rules relating to diplomatic
protection.
Finally, Article LV of the Pact of Bogota enables the parties to make
reservations to that instrument which "shall with respect to the State that
makes them, apply to all signatory States on the basis of reciprocity". In
the absence of special procedural provisions those reservations may, in
accordance with the rules of general international law on the point as
codified by the 1969 Vienna Convention on the Law of Treaties, be made only
at the time of signature or ratification of the Pact or at the time of
adhesion to that instrument.
36. These provisions together indicate that the commitment in Article XXXI
can only be limited by means of reservations to the Pact itself. It is an
autonomous commitment, independent of any other which the parties may have
under taken or may undertake by depositing with the United Nations
Secretary-General a declaration of acceptance of compulsory jurisdiction
under Article 36, paragraphs 2 and 4, of the Statute. Not only does Article
XXXI not require any such declaration, but also when such a declaration is
made, it has no effect on the commitment resulting from that Article.
Neither the first nor the second interpretation of the text advanced by
Honduras is compatible with the actual terms of the Pact.
37. Further confirmation of the Court's reading of Article XXXI is to be
found in the travaux preparatoires. In this case these must of course be
resorted to only with caution, as not all the stages of the drafting of the
texts at the Bogota Conference were the subject of detailed records. The
proceedings, of the Conference were however published, in accordance with
Article 47 of the Regulations of the Conference, in Spanish, and certain
recorded, discussions of Committee III of the Conference throw light
particularly upon the contemporary conception of the relationship between
Article XXXI and declarations under Article 36 of the Statute.
The text which was to become Article XXXI was discussed at the meeting of
Committee III held on 27 April 1948. The representative of the United States
reminded the meeting that his country had previously, under Article 36,
paragraph 2, of the Statute, made a declaration of acceptance of compulsory
jurisdiction that included reservations; he made it clear that the United
States intended to maintain those reservations in relation to the
application of the Pact of Bogota. The representative of Mexico replied that
States which wished to maintain such reservations in their relations with
the other parties to the Pact would have to reformu-[p 86]late them as
reservations to the Pact, under Article LV. The representatives of Colombia
and Ecuador members of the drafting group, confirmed that interpretation.
The representative of Peru asked whether an additional Article should not be
added to the draft in order to specify that adhesion to the treaty would
imply, as between the parties to it the automatic removal of any
reservations to declarations of acceptance of compulsory jurisdiction. The
majority of Committee III considered, however, that such an Article was not
necessary and the representative of Peru went on to say, after the vote,
that "we should place on record what has been said here, to the effect that
it is understood that adhesion is unconditional and that reservations are
automatically removed" FN1 (translation by the Registry).
---------------------------------------------------------------------------------------------------------------------
FN1"Pero deben constar en actas las palabras pronunciadas aqui, acerca de
que se entiende que es adhesion incondicionaly que quedan removidas,
automaticamente, las reservas." (Novena Conferencia Internacional Americana,
Actas y Documentos, Vol. IV, p. 167.)
---------------------------------------------------------------------------------------------------------------------
38. This solution was not contested in the plenary session, and Article XXXI
was adopted by the Conference without any amendments on that point.
As a consequence the United States, when signing the Pact, made a
reservation to the effect that:
"The acceptance by the United State of the jurisdiction of the International
Court of Justice as compulsory ipso facto and without special agreement, as
provided in this Treaty, is limited by any jurisdictional or other
limitations contained in any Declaration deposited by the United State under
Article 36, paragraph 4, of the Statue of the Court, and in force at the
time of the submission of any case."
It is common ground between the Parties that if the Honduran interpretation
of Article XXXI of the Pact be correct, this reservation would not modify
the legal situation created by that Article, and therefore would not be
necessary; Honduras argues however that it was not true reservation, but
merely an interpretative declaration.
39. That argument is inconsistent with the report, published by the United
States Department of State, of the delegation of that country to the
Conference of Bogota, which stated that Article XXXI
"does not take into account the fact that various States in previous
acceptences of the Court's jurisdiction under Article 36, paragraph 2, of
the Statute have found it necessary to place certain limitations upon the
jurisdiction thus accepted. This was this case in respect to the United
Stated, and since the terms of its declaration had, in addition, received
the previous advice and consent of the Senate, the delegation found it
necessary to interpose a reservation to the effect that the acceptance of
the jurisdiction of the Court as compulsory ipso facto and without special
agreement is limited by any jurisdictional or other limitations contained in
any declaration deposited by the United States under Article 36, paragraph
4, of the Statute of the Court in force at the time of the submission of any
case." (U.S. Department of State, Report of the U.S. Delegation to the Ninth
International Conference of American States, Washington, 1948, p. 48.)
In the light of this report, it is clear that the United States reservation
on this point was intended to achieve something which, in the opinion of the
United States delegation, could not be brought about merely by applying
Article XXXI. It obviously was a reservation to the Pact, the existence of
which, confirms the interpretation of Article XXXI which the Court has given
above.
40. That interpretation, moreover, corresponds to the practice of the
parties to the Pact since 1948.
They have not, at any time, linked together Article XXXI and the
declarations of acceptance of compulsory jurisdiction made under Article 36,
paragraphs 2 and 4, of the Statute. Thus no State, when adhering to or
ratifying the Pact, has deposited with the United Nations Secretary-General
a declaration of acceptance of compulsory jurisdiction under the conditions
laid down by the Statute. Moreover, no State party to the Pact (other than
Honduras in 1986) saw any need, when renewing or amending its declaration of
acceptance of compulsory jurisdiction, to notify the text to the
Secretary-General of the OAS, the depositary of the Pact, for transmission
to the other parties.
Also, in November 1973 El Salvador denounced the Pact of Bogota and modified
its declaration of acceptance of compulsory jurisdiction with a view to
restricting its scope. If the new declaration would have been applicable as
between the parties to the Pact, no such denunciation would have been
required to limit similarly the jurisdiction of the Court under Article
XXXI.
Finally, Honduras has drawn attention to the Washington Agreement of 21 July
1957 between Honduras and Nicaragua to bring the case concerning the
Arbitral Award Made by the King of Spain on 23 December 1906 before the
Court, and has argued that the conclusion of that agreement implies that
Nicaragua's reservation to the Pact (quoted in paragraph 19 above) was
regarded as applicable to its declaration of acceptance of compulsory
jurisdiction, and that Nicaragua thereby recognized the existence of a link
between the Pact and the declaration. The Court cannot draw this conclusion
from the facts. The conclusion of the Washington Agreement could be
explained much more simply by the parties' desire to avoid any controversy
over jurisdiction, by preventing any objection being raised before the Court
either on the basis of Nicaragua's reservation to the Pact or concerning the
validity of its declaration of acceptance of compulsory jurisdiction. It
follows that that precedent is in no way [p 88] contrary to the consistent
practice of the parties in the application of the Pact of Bogota.
41. Under these circumstances, the Court has to conclude that the commitment
in Article XXXI of the Pact is independent of such declarations of
acceptance of compulsory jurisdiction as may have been made under Article
36, paragraph 2, of the Statute and deposited With the United Nations
Secretary-General pursuant to paragraph 4 of that same Article. Consequently
it is not necessary to decide whether the 1986 Declaration of Honduras is
opposable to Nicaragua in this case; it cannot in any event restrict the
commitment which Honduras entered into by virtue of Article XXXI. The
Honduran argument as to the effect of the reservation to its 1986
Declaration on its commitment under Article XXXI of the Pact therefore
cannot be accepted.
**
42. The second objection of Honduras to jurisdiction is based on Article
XXXII of the Pact of Bogota, which reads as follows:
"When the conciliation procedure previously established in the present
Treaty or by agreement of the parties does not lead to a solution, and the
said parties have not agreed upon an arbitral procedure, either of them
shall be entitled to have recourse to the International Court of Justice in
the manner prescribed in Article 40 of the Statute thereof. The Court shall
have compulsory jurisdiction in accordance with Article 36, paragraph 1, of
the said Statute."
43. It is the contention of Honduras that Articles XXXI and XXXII must be
read together; The first is said to define the extent of the Court's
jurisdiction and the second to determine the conditions under which the
Court may be seised. According to Honduras it follows that the Court could
only be seised under Article XXXI if, in accordance with Article XXXII,
there had been a prior recourse to conciliation and lack of agreement to
arbitrate, which is not the situation in the present case.
44. Nicaragua on the other hand contends that Article XXXI and Article XXXII
are two autonomous provisions, each of which confers jurisdiction upon the
Court in the cases for which it provides. It claims that Article XXXI covers
all juridical disputes which, before the conclusion of the Pact, would have
been subject to arbitration under the General Treaty of Inter-American
Arbitration of 5 January 1929; and that Article XXXII relates to disputes,
whatever their nature, previously in the domain of conciliation under the
General Convention of Inter-American Conciliation of the same date. It
maintains accordingly that the Court can be seised, under Article XXXI, in
the cases covered by that text, without there being any requirement to
ascertain whether the procedural conditions laid down, in other cases, by
Article XXXII have or not been satisfied. [p 89]
45. Honduras's interpretation of Article XXXII runs counter to the terms of
that Article. Article XXXII makes no reference to Article XXXI; under that
text the parties have, in general terms, an entitlement to have recourse to
the Court in eases where there has been an unsuccessful conciliation.
It is true that one qualification of this observation is required, with
regard to the French text of Article XXXII, which provides that, in the
circumstances there contemplated, the party has "le droit de porter la
question devant la Cour". That expression might bethought to refer back to
the question which might have been the subject of the dispute referred to
the Court under Article XXXI. It should, however, be observed that the text
uses the word "question", which leaves room for uncertainty, rather than the
word "differend (dispute)", used in Article XXXI, which would have been
perfectly clear. Moreover, the Spanish, English and Portuguese versions
speak, in general terms of an entitlement to have recourse to the Court and
do not justify the conclusion that there is a link between Article XXXI and
Article XXXII.
Moreover, Article XXXII, unlike Article XXXI, refers expressly to the
jurisdiction which the Court has under Article 36, paragraph 1, of the
Statute. That reference would be difficult to understand if, as Honduras
contends, the sole purpose of Article XXXII were to specify the procedural
conditions for bringing before the Court disputes for which jurisdiction had
already been conferred upon it by virtue of the declaration made in Article
XXXI, pursuant to Article 36, paragraph 2.
46. It is, moreover, quite clear from the Pact that the purpose of the
American States in drafting it was to reinforce their Mutual commitments
with regard to judicial settlement. This also confirmed by the travaux
preparatoires: the discussion at the meeting of Committee III of the
Conference held on 27 April 1948 has already been referred to in paragraph
37 above. At that meeting, furthermore, the delegate of Colombia explained
to the Committee the general lines of the system proposed by the
Sub-Committee which had prepared the draft; the Sub-Committee took the
position "that the principal procedure for the peaceful settlement of
conflicts between the American States had to be judicial procedure before
the International Court of Justice" FN1 (translation by the Registry).
Honduras's interpretation would however imply that the commitment, at first
sight firm and unconditional, set forth in Article XXXI would, in fact, be
emptied of all content if, for any reason, the dispute were not subjected to
prior conciliation. Such a solution would be clearly contrary to both the
object and the purpose of the Pact.
---------------------------------------------------------------------------------------------------------------------
FN1 "La Subcomision estimo que el procedimiento principal para el arreglo
pacifico de los conflictos entre los Estados Americanos ha de ser el
procedimiento judicial ante la Corte Internacional de Justicia; . . ."
(Novena Conferencia Internacional Americana, Actas y Documentos, Vol. IV, p.
156).
---------------------------------------------------------------------------------------------------------------------
47. In short, Articles XXXI and XXXII provide for two distinct ways [p 90]
by which access may be had to the Court. The first relates to cases in which
the Court can be seised directly and the second to those in which the
parties initially resort to conciliation.
In the present case, Nicaragua has relied upon Article XXXI, not Article
XXXII. It is accordingly not pertinent whether the dispute submitted to the
Court has previously been the subject of an attempted conciliation, nor what
interpretation is given to Article XXXII in other respects, in particular as
regards the nature and the subject-matter of the disputes to which that text
applies. It is sufficient for the Court to find that the second objection
put forward by Honduras is based upon an incorrect interpretation of that
Article and, for that reason, cannot be accepted.
48. Article XXXI of the Pact of Bogota thus confers jurisdiction upon the
Court to entertain the dispute submitted to it. For that reason, the Court
does not need to (consider whether it might have jurisdiction by virtue of
the declarations of acceptance of compulsory jurisdiction by Nicaragua and
Honduras set out in paragraphs 23 to 25 above.
***
49. The Court now turns to the question of admissibility of the Nicaraguan
Application. Four objections have been raised by Honduras, two of which are
general in nature and the remaining two presented on the basis of the Pact
of Bogota.
50. Before examining these objections, it will be convenient to recall
briefly the claims of Nicaragua against Honduras, as stated in the
Application. Nicaragua alleges the existence of armed bands, generally known
as the contra forces, openly based in Honduran territory and carrying but
armed attacks on Nicaraguan territory (Application, paras. 11 and 13). It
claims that these forces operate with the knowledge and assistance of the
Honduran Government (ibid., para. 14); that the Honduran military forces not
only aid and abet the contras but have directly participated in military
attacks on Nicaragua and have given vital intelligence and logistical
support to the contras (ibid., para. 19); and that the Honduran Government
has used the threat of force against Nicaragua in both words and facts
(ibid., para. 20). Nicaragua therefore claims that Honduras has incurred
legal responsibility if for the breach of, inter alia, the prohibition of
the threat or use of force as provided the Charter of the United Nations
(ibid., para. 22); the prohibition of intervention in the internal or
external affairs of other States laid down in the Charter of the OAS (ibid.,
para. 23); and the obligations of customary international law not to
intervene in the affairs of another State, not to use force against another
State, not to violate the sovereignty of another State, and not to kill,
wound or kidnap citizens of other States (ibid., paras. 26-29). On this
basis, Nicaragua requests the Court to adjudge and declare that the acts and
omissions of Honduras constitute breaches of international law; that
Honduras is under a duty immediately to cease and to refrain from all [p 91]
such acts; and that Honduras is under an obligation to make reparation to
the Republic of Nicaragua.
51. Honduras's first objection to the admissibility of the Application is
that "It is a politically-inspired, artificial request which the Court
should not entertain consistently with its judicial character"; it claims
that Nicaragua is attempting to use the Court, or the threat of litigation
before the Court, as a means of exerting political pressure on the other
Central American States.
52. As regards the first aspect of this objection, the Court is aware that
political aspects may be present in any legal dispute brought before it. The
Court, as a judicial organ, is however only concerned to establish, first,
that the dispute before it is a legal dispute, in the sense of a dispute
capable of being settled by the application of principles and rules of
international law, and secondly, that the Court has jurisdiction to deal
with it, and that that jurisdiction is not fettered by any circumstance
rendering the application inadmissible. The purpose of recourse to the Court
is the peaceful settlement of such disputes; the Court's judgment is a legal
pronouncement, and it cannot concern itself with the political motivation
which may lead a State at a particular time, or in particular circumstances,
to choose judicial settlement. So far as the objection of Honduras is based
on an alleged political inspiration of the proceedings, it therefore cannot
be upheld.
53. The second aspect of the first objection of Honduras is its claim that
the request is artificial. In its Memorial Honduras explains that in its
view the overall result of Nicaragua's action is "an artificial and
arbitrary dividing up of the general conflict existing in Central America",
which "may have negative consequences for Honduras as a defendant State
before the Court", because, it is said, certain facts appertaining to the
general conflict "are inevitably absent from the proceedings before the
Court", and other facts have already been in issue before the Court in the
case concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America). Honduras contends that no
real distinction can be made between the general situation of tension in the
region and the various bilateral disputes which Nicaragua claims to exist
there, and that the "procedural situation" created by Nicaragua's
splitting-up of the overall conflict into separate disputes is contrary to
the requirements of good faith and the proper functioning of international
justice.
54. The Court cannot uphold this contention. It is not clear why any facts
should be "inevitably absent" from the proceedings, since it is open to
Honduras to bring to the Court's attention any facts which in its view are
relevant to the issues in this case. Nor can it be accepted that once the
Court has given judgment in a case involving certain allegations of fact, [p
92] and made findings in that respect, no new procedure can be commenced in
which those, as well as other, facts might have to be considered. In any
event, it is for the Parties to establish the facts in the present case
taking account of the usual rules of evidence, without it being possible to
rely on considerations of res judicata in another case not involving the
same parties (see Article 59 of the Statute).
There is no doubt that the issues of which the Court has been seised may be
regarded as part of a wider regional problem. The Court is not unaware of
the difficulties that may arise where particular aspects of a complex
general situation are brought before a Court for separate decision.
Nevertheless, as the Court observed in the case concerning United States
Diplomatic and Consular Staff in Tehran, "no provision of the Statute or
Rules contemplates that the Court should decline to take cognizance of one
aspect of a dispute merely because that dispute has other aspects, however
important" (I.C.J. Reports 1980, p. 19, para. 36).
55. The second Honduran objection to admissibility is that "the Application
is vague and the allegations contained in it are not properly
particularized, so that the Court cannot entertain the Application without
substantial prejudice to Honduras". In support of this Honduras asserts that
"a large number of the matters put forward by Nicaragua do not constitute
concrete acts or omissions, identifiable by reference to place and to time",
but concern "indeterminate situations" or "opinions about intentions"; that
another large group of these matters are referred to only by the year in
which they took place without geographical location; and that the
Application confuses facts of a different nature and attributable to
different causes.
56. Article 40, paragraph 1, of the Statute requires that an Application
indicate "the subject of the dispute". Under the Rules of Court, an
Application is required to specify "the precise nature of the claim", and in
support thereof to give no more than "a succinct statement of the facts and
grounds on which the claim is based" (Art. 38, para. 2). The Court
considers, that the Nicaraguan Application in the present case, summarized
in paragraph 50 above, meets these requirements.
57. Accordingly none of these objections of a general nature to
admissibility can be accepted.
**
58. The Court now turns to the objections to admissibility which Honduras
bases upon Articles II and IV of the Pact of Bogota.
59. Article II of the Pact, upon which Honduras bases its third objection to
admissibility, reads as follows:
"The High Contracting Parties recognize the obligation to settle [p 93]
international controversies by regional pacific procedures before referring
them to the Security Council of the United Nations.
Consequently, in the event-that a controversy arises between two or more
signatory States which, in the opinion of the parties [in the French text
"de l'avis de l'une des parties"], cannot be settled by direct negotiations
through the usual diplomatic channels, the parties bind themselves to use
the procedures established in the present Treaty, in the manner and under
the conditions provided for in the following articles, or, alternatively,
such special procedures as, in their opinion, will permit them to arrive at
a solution."
60. The submission of Honduras on the application of Article II is as
follows:
"Nicaragua has failed to show that, in the opinion of the Parties, the
dispute cannot be settled by direct negotiations, and thus Nicaragua fails
to satisfy an essential precondition to the use of the procedures
established by the Pact of Bogota, which include reference of disputes to
the International Court of Justice."
The contention of Honduras is that the precondition to recourse to the
procedures established by the Pact is not merely that both parties should
hold the opinion that the dispute could not be settled by negotiation, but
that they should have "manifested" that opinion. The opinion of Honduras on
the question was stated by its Co-Agent at the hearings. Referring to the
requirement in Article II that the dispute should, in the opinion of the
parties, not be capable of a negotiated settlement, he stated that
"this first condition of the Pact is not fulfilled in this case, since
Honduras is not of the opinion that the Parties have exhausted all
possibility of settlement by direct negotiation",
and that,
"at least in the opinion of Honduras, the dispute may be settled by direct
negotiations through the usual diplomatic channels; this is confirmed by the
intense diplomatic activity which is in progress in Central America . . ."
The diplomatic activity referred to is that of the Contadora process and its
aftermath, to be described below (paragraphs 70 to 74 and 81 to 88).
Honduras has asserted that the negotiations in that context were "direct
negotiations" within the meaning of Article II of the Pact, that throughout
the process there were exchanges between the delegations of Honduras and
Nicaragua, proposals and counter-proposals; it has also relied on the
Court's jurisprudence as to the established modes of international
negotiation in order to discount any distinction between the direct
bilateral [p 94] negotiations between Nicaragua and itself prior to April
1983 and the negotiations in the context of the Contadora process.
61. Nicaragua has argued, first, that it does not necessarily follow from
the text of Article II that recourse to pacific procedures is available only
when it is the opinion of the parties that the dispute cannot be settled by
direct negotiations; that it is perfectly logical to read Article II as
setting forth one circumstance -- but not the exclusive one -- in which the
parties bind themselves to use the procedures set forth in the Pact.
62. The Court does not consider that Article II, in the context of the Pact
as a whole, can be read in this sense; that provision constitutes, as was
argued by Honduras, a condition precedent to recourse to the pacific
procedures of the Pact in all cases. The Court has therefore to consider how
that condition Applies in the present case.
63. Nicaragua then rejects the interpretation of Article II advanced by
Honduras, that both parties to a dispute should have manifested the opinion
that it cannot be settled by negotiations, contending that it would give a
recalcitrant party to a dispute a right of veto of judicial or other
settlement which would shatter the whole carefully constructed scheme of
compulsory jurisdiction established by the Pact. It further contends that
the question is not whether one of the parties or both of them must think
that the dispute cannot be settled by diplomatic means, but whether the
dispute can in fact be settled by such means; in its view the jurisprudence
of the Court supports the principle that when there is disagreement between
the parties on the point, the issue is to be resolved not so much on the
basis of the particular form of words used in the compromissory instrument,
but by an objective evaluation by the Court of the possibilities for
settlement of the dispute by direct negotiations.
The Court observes however that that jurisprudence concerns cases in which
the applicable text referred to the possibility of such settlement; Article
II however refers to the opinion of the parties as to such possibility. The
Court therefore does not have to make an objective assessment of such
possibility but to consider what is the opinion of the Parties thereon.
64. Before proceeding further, the Court notes that the Parties have drawn
attention to a discrepancy between the four texts of Article II of the Pact
(English, French, Portuguese and Spanish). In the French text, what is
required is that, "de l'avis de l'une des parties", i.e., "in the opinion of
one of the parties", the dispute should not be susceptible of settlement by
negotiation. In the English, Portuguese and Spanish texts, the corresponding
phrase is "in the opinion of the parties", or the equivalent in the other
two languages. For reasons which will appear, the Court's reasoning does not
require the resolution of the problem posed by this textual discrepancy, and
it will therefore not rehearse all the arguments that have been put forward
by the Parties to explain it or to justify the preferring of one version to
another.
65. For the purpose of determining the application in this case of Arti-[p
95]cle II of the Pact, the Court will proceed on the hypothesis that the
stricter interpretation should be used, i.e., that it would be necessary to
consider whether the "opinion" of both Parties was that it was not possible
to settle the dispute by negotiation. For this purpose the Court does not
consider that it is bound by the mere assertion of the one Party or the
other that its opinion is to a particular effect: it must, in the exercise
of its judicial function, be free to make its own determination of that
question on the basis of such evidence as is available to it. This is in
fact the view of Honduras, as expressed by its Co-Agent at the hearings:
"It is for the Court to decide for itself whether, by their conduct, the
Parties have provided substantive evidence that they consider in good faith
that a dispute can or cannot be settled by direct negotiations through the
usual diplomatic channels . . .
The Court may disregard what has been said by one of the Parties if it is
clearly apparent that the contentions it has put forward are in
contradiction with reality.
The Court has to seek for evidence of the Parties' genuine intentions. It
cannot substitute its own opinion for that of the Parties as to whether the
dispute is susceptible to settlement by direct negotiations."
This statement presupposes that the holding of opinions can be subject to
demonstration, and that the Court may expect "the Parties [to provide]
substantive evidence that they consider in good faith" a certain possibility
of negotiation to exist or not to exist. It even invites the Court "to seek
for evidence of the Parties' genuine intentions".
66. The critical date for determining the admissibility of an application is
the date on which it is filed (cf. South West Africa, Preliminary
Objections, I.C.J. Reports 1962, p. 344). It may however be necessary, in
order to determine with certainty what the situation was at the date of
filing of the Application, to examine the events, and in particular the
relations between the Parties, over a period prior to that date, and indeed
during the subsequent period. Furthermore, subsequent events may render an
application without object, or even take such a course as to preclude the
filing of a later application in similar terms. In this case, the date at
which "the opinion of the parties" has to be ascertained for the application
of Article II of the Pact is 28 July 1986, the date of filing of the
Nicaraguan Application.
67. To ascertain the opinion of the Parties, the Court is bound to analyse
the sequence of events in their diplomatic relations. It is common ground
between the Parties that their relations deteriorated seriously when, from
1980 onwards many active opponents of the Nicaraguan Government formed
themselves into irregular military forces and commenced a policy of armed
opposition; a substantial group operated from 1981 onwards along the
Nicaraguan borders with Honduras. According to Nicaragua, there ensued
repeated border incidents, and instances of [p 96] material support given to
those opponent, which have compelled it to protest diplomatically to
Honduras "continuously since 1980". The Presidents of the two States held
talks on these matters at El Guasaule, Nicaragua, in May 1981. Bilateral
contacts between the Parties continued for some time after this date; the
parties have however made conflicting assertions as to their nature and
extent.
68. On 23 March 1982 the Honduran Foreign Minister presented to the
Permanent Council of the OAS a draft "plan to internationalize peace in
Central America". At a meeting of the two Foreign Ministers in Tegucigalpa
on 21 April 1982, Nicaragua responded with a seven-point plan calling inter
alia for the signing of a bilateral non-aggression pact, a system of joint
border patrols and the dismantling of the military encampments said to be
maintained in Honduras by opponents of the Nicaraguan Government. Honduras
commented on this proposal, without committing itself, two days later. The
Honduran Foreign Minister explained to the National Congress that in his
reply, a diplomatic Note of 23 April 1982, "without refusing discussion of
the bilateral problems" he had reiterated Honduras's position of the prior
importance of a solution within a regional context. In that Note before
commenting on the specific Nicaraguan proposals, he said the following:
"I understand, as was very clearly explained by Your Excellency, that your
proposal is of a bilateral nature and is aimed at improving relations
between our two countries, while the Honduran initiative is wider in scope,
of a regional nature and with perhaps more ambitious objectives. Despite
this, my Government considers that the regional approach should prevail
since a major part of the problems confronted by the Central American
countries go beyond the possibility of a bilateral solution."
69. Thus, it appears that in 1981 and 1982, the Parties had engaged in
bilateral exchanges at various levels including, at the very beginning, that
of the Heads of State. Broadly speaking, Nicaragua sought a bilateral
understanding while Honduras increasingly emphasized the regional dimension
of the problem and held out for a multilateral approach, eventually
producing a plan of internationalization which led to unsuccessful
Nicaraguan counter-proposal.
70. The Foreign Ministers of the countries which were to become known as the
Contadora Group -- Colombia, Mexico, Panama and Venezuela -- met on 8 and 9
January 1983 on Contadora Island, Panama, to consider in what way their
countries could contribute to the resolution of the grave and dangerous
problems that persisted in Central America. [p 97] They urgently called upon
all Central American countries "to reduce tensions and to establish the
basis for a lasting climate of friendly relations and mutual respect . . .
through dialogue and negotiation". Within three months they had visited
Nicaragua, Honduras, Costa Rica, El Salvador and Guatemala and had secured
the agreement of the Governments of those countries to engage in a common
dialogue. On 17 July 1983 the Heads of States of the Contadora countries
issued the Cancun Declaration on Peace in Central America, recording the
establishment, with the agreement of all those Governments, of "an agenda
covering the salient aspects of the problems of the region". Two days later,
the President of Nicaragua made a speech in which he expressed his
Government's acceptance "that the beginning of the negotiation process
promoted by the Contadora Group be of a multilateral character" and proposed
immediate discussions with a view to reaching agreements on certain points;
he added:
"Nicaragua states its willingness to assume, with full responsibility, all
commitments arising from the said agreements and makes this clear by
accepting the point of view of the Heads of States of the Contadora Group to
the intent that the task of settling specific differences between countries
must be begun initially with the signature of a memorandum of understanding
and the creation of commissions allowing the parties to carry put combined
actions and guarantee effective control of their territories, especially in
the frontier zones."
There followed a joint meeting in Panama at the end of July 1983 between the
Contadora Foreign Ministers and those of the five Central American States,
at which the Central American Foreign Ministers "made known their acceptance
and gave their support to" the Cancun Declaration.
71. On 9 September 1983 the Group drew up a "Document of Objectives"
covering a vast range of political, military, social, economic, humanitarian
and financial questions. For the purpose of the instant case, it should be
noted that the objectives included the following:
"To promote detente and put an end to situations of conflict in the area,
refraining from taking any action that might jeopardize political confidence
or prevent the achievement of peace, security and stability in the region.
. . . …………………………………………………………………………………………..
To create political conditions intended to ensure the international
security, integrity and sovereignty of the States of the region.
. . . ………………………………………………………………………………………….
To prevent the use of their own territory [i.e., that of the participant [p
98] States] by persons, organizations or groups seeking to destabilize the
Governments of Central American countries and to refuse to provide them with
or permit them to receive military or logistical support." (UN doc.
S/16041.)
The Group having requested concrete proposals towards an agreement aimed at
the objectives concerned, Nicaragua responded with the submission of five
proposed treaties, collectively called "Legal Bases for Guaranteeing Peace
and the International Security of the Central American States" on 15 October
1983, the date which Honduras identifies as marking the beginning of
Nicaragua's active participation in what has come to be called "the
Contadora process".
72. On 1 May 1984 the Contadora Group issued an information bulletin noting
inter alia that at a meeting held in Panama the previous day the Foreign
Ministers of the Central American States had reaffirmed their conviction
that the Contadora process "represented the genuine regional alternative and
the appropriate forum for the resolution of the conflicts those countries
are currently facing" (UN doc. A/39/226; S/16522). By then the Group had
begun the drafting of a "Contadora Act for Peace and Co-operation in Central
America", covering in great detail the same vast range of topics as had been
covered by the Document of Objectives. This was published in July 1984, and
a revised version of the draft Act was circulated on 7 September 1984.
73. On 21 September 1984 the President of Nicaragua informed the Contadora
Group that his Government had decided to accept the revised Contadora Act in
its totality and without modification. The Government of Honduras took a
more guarded attitude, and invited the other Central American Governments to
a meeting in Tegucigalpa for the purpose of considering further revisions.
At this meeting, held on 20 October 1984, but in which Nicaragua did not
participate, a different proposed treaty was provisionally agreed to by
Honduras, El Salvador and Costa Rica.
74. No progress appears to have been made toward the adoption of the
Contadora Act during the next twelve months, although Nicaragua agreed to
negotiate changes in the initial draft; those negotiations lasted through
most of 1985. At a meeting in Cartagena (Colombia) on 24-26 August 1985, the
Foreign Ministers of the Contadora Group were joined by the Foreign
Ministers of Argentina, Brazil, Peru and Uruguay (the "Lima Group", later
known as the "Support Group"). Consultations resulted in the preparation of
a further draft Act, presented by the Contadora Group and the Support Group
to the Central American States on 12-13 September 1985. None of the Central
American States fully accepted the draft, but negotiations continued, to
break down in June 1986. [p 98]
75. At this stage the Court is not called upon to pronounce on the legal
consequences of this breakdown, but merely to determine the nature of the
procedure which was followed, and to ascertain whether, as Honduras claims,
the negotiations conducted in the context of the Contadora process could be
regarded as direct negotiations through the usual diplomatic channels,
within the meaning of Article II of the Pact of Bogota.
This process, during the period now in question, was a "combination of
consultation, negotiation and mediation", as Honduras has observed, and the
General Assembly of the OAS in Resolution 702 of 17 November 1984, noted
with pleasure "the intensive effort made by the Foreign Ministers of the
Contadora Group in consulting, mediating between, and negotiating with, the
Central American governments . . .".
While there were extensive, consultations and negotiations between 1983 and
1986, in different forms, both among the Central American States themselves,
and between those States and those belonging to the Contadora, Group and the
Support Group, these were organized and carried on within the context of the
mediation to which they were subordinate. At this time the Contadora process
was primarily a mediation, in which third States, on their own initiative,
endeavoured to bring together the viewpoints of the States concerned by
making specific proposals to them.
That process therefore, which Honduras had accepted, was, as a result of the
presence and action of third States, markedly different from a "direct
negotiation through the usual diplomatic channels". It thus did not fall
within the relevant provisions of Article II of the Pact of Bogota.
Furthermore, no other negotiation which would meet the conditions laid down
in that text was contemplated on 28 July 1986, the date of filing of the
Nicaraguan Application. Consequently Honduras could not plausibly maintain
at that date that the dispute between itself and Nicaragua, as defined in
the Nicaraguan Application, was at that time capable of being settled by
direct negotiation through the usual diplomatic channels.
76. The Court therefore considers that the provisions of Article II of the
Pact of Bogota relied on by Honduras do not constitute a bar to the
admissibility of Nicaragua's Application.
***
77. The fourth and last objection of Honduras to the admissibility of the
Nicaraguan Application is that:
"Having accepted the Contadora process as a 'special procedure' within the
meaning of Article II of the Pact of Bogota, Nicaragua is precluded both by
Article IV of the Pact and by elementary considerations of good faith from
commencing any other procedure for [p 100] pacific settlement until such
time as the Contadora process has been concluded; and that time has not
arrived."
Article IV of the Pact of Bogota, upon which Honduras relies, reads as
follows:
"Once any pacific procedure has been initiated, whether by agreement between
the parties or in fulfillment of the present Treaty or a previous pact, no
other procedure may be commenced until that procedure is concluded."
78. It is common ground between the Parties that the present proceedings
before the Court are a "pacific procedure" as contemplated by the Pact of
Bogota, and that therefore if any other "pacific procedure" under the Pact
has been initiated and not concluded, the proceedings were instituted
contrary to Article IV and must therefore be found inadmissible. The
disagreement between the Parties is whether the Contadora process is or is
not a procedure contemplated by Article IV. Honduras contends that the
Contadora process is a "special procedure" for the purposes of Article II of
the Pact which refers to "such special procedures as, in their [the
parties'] opinion, will permit them to arrive at a solution" of the dispute,
as an alternative to "the procedures established in the present Treaty".
This special procedure has, in the contention of Honduras, been entered into
by agreement between the Parties, and thus must be regarded as a "pacific
procedure" for the purposes of Article IV. Nicaragua on the other hand
denies that the Contadora process can be treated as a "special procedure"
for purposes of Articles II and IV of the Pact, because, inter alia, its
subject-matter is distinct from the dispute before the Court.
79. It is clear that the question whether or not the Contadora process can
be regarded as a "special procedure" or a "pacific procedure" within the
meaning of Articles II and IV of the Pact would not have to be determined if
such a procedure had to be regarded as "concluded" by 28 My 1986, the date
of filing of the Nicaraguan Application. The date of the institution of
proceedings is the date at which the admissibility of a claim has to be
assessed (paragraph 66 above); for the application of Article IV, the
question is specifically whether any initial pacific procedure which may
have been instituted has been "concluded" before any other procedure,
including judicial procedure, is "commenced".
80. For the purposes of Article IV of the Pact, no formal act is necessary
before a pacific procedure can be said to be "concluded". The procedure in
question does not have to have failed definitively before a new procedure
can be commenced. It is sufficient if, at the date on which a new procedure
is commenced, the initial procedure has come to a standstill in such
circumstances that there appears to be no prospect of its being continued or
resumed. [p 101]
81. In order to decide this issue in the present case, the Court will resume
its survey of the Contadora process. The initial stages of the process have
already been described in paragraphs 70 to 74 above. Subsequently, from 5 to
7 April 1986 a meeting of the Foreign Ministers of the Contadora Group and
of the Support Group was held in Panama for the purpose of reviewing
progress. On the outcome of this meeting, the Contadora Group
"invited the five Central American Governments to a meeting on 6 June 1986
at Panama City for the purpose of declaring the negotiation of the text of
the Contadora Act officially concluded and proceeding to its formal
adoption" (letter addressed by the Group to the Secretary-General of the
United Nations on 26 June 1986 (see paragraph 85 below); UN doc. A/40/1136;
S/18184, Ann. I).
The five Governments responded in a communique of 18 May 1986 announcing
their intention "to gather for the signing of the Act on 6 June 1986" and by
the Declaration issued at Esquipulas, Guatemala, on 25 May 1986, in which
their Presidents stated inter alia:
"That they are willing to sign the 'Contadora Act for Peace and Co-operation
in Central America, and agree to comply fully with all the undertakings and
procedures contained in the Act. They recognize that some aspects remain
outstanding, such as military manoeuvres, arms control and the monitoring of
compliance with the agreements. Today, however, in this dialogue among the
leaders of fraternal peoples, they find the various proposals put forward by
the countries to be sufficiently productive and realistic to facilitate the
signing of the Act."
82. Immediately after the meeting of Presidents at Esquipulas, their
plenipotentiaries resumed discussions with a view to settling such
differences as remained, but came to the conclusion that it would be
impossible for the Act to be signed on the appointed date; they nevertheless
"communicated the determination of their respective Governments to continue
to promote the diplomatic negotiation process" (letter of 26 June 1986 to
the Secretary-General cited, in. the previous paragraph). In that context,
all Foreign Ministers concerned met at Panama City on 6-7 June 1986 for the
formal delivery of "that which, in the opinion of the Contadora Group,
constitute[d] the final draft of the Act of Contadora for Peace and
Co-operation in Central America", to quote the letter dated 6 June 1986
addressed by the Group to the Central American Foreign Ministers on that
occasion. The Group explained that the text "incorporates the essential
political commitments related to the substantive aspects", and went on: [p
102]
"Once this question is resolved, we propose to proceed immediately to
another phase of the negotiations, referring to matters of an operational
character and which will refer mainly to the establishment of the
Verification and Control Commission."
83. On 12 June 1986, the Governments of Costa Rica and El Salvador released
a joint statement rejecting the draft Act of Contadora. On 13 June 1986, the
Government of Honduras issued a press communique, stating, in particular:
"1. The last project for an instrument ('acta') proposed by Contadora does
not constitute, in the opinion of the Government of Honduras, a document
that establishes reasonable and sufficient obligations for guaranteeing its
security.
2. The Contadora Group stated in that meeting that the project in reference
exhausted its mediation efforts with relation to the substantive elements of
the 'acta', but that not with standing they were available for collaborating
in the negotiation of the operative and practical elements of the 'acta'.
3. The Government of Honduras reiterates its willingness to continue
exploring formulas that effectively guarantee the legitimate interests of
all the States . . ."
On 21 June 1986 the Government of Honduras addressed a letter to the
Contadora Group, expressing its attitude to the Final Act. In that letter,
inter alia, it quoted paragraph 1 of the press communique, and referred to
paragraph 2; it noted that the Contadora Group "would remain ready to
collaborate in the negotiation of [the] operative and practical aspects" of
the Act, and stated that in its view
"it would only be possible to systematically approach these matters insofar
as the agreement dealing with the substantive aspects of the Act, Would have
been clearly established and accepted".
84. The Foreign Minister of Nicaragua, in a letter of 17 June 1986, gave the
formal response of his Government, to the effect, inter alia, that the Final
Act was the only instrument "capable of producing a quick and efficient
conclusion of the negotiating process", and offered to implement a number of
proposals it contained, in particular on military and logistical matters.
85. On 26 June 1986, the Foreign Ministers of the Contadora Group called on
the Secretary-General of the United Nation (UN doc. A/40/1136; S/18184), and
handed to him a letter recounting developments since September 1985; in that
letter the Group state:
"Now that the substantive issues of the Contadora Act have been resolved, as
the Central American Governments have unequivocally [p 103] stated, and in
order that the Act may be signed, we propose that we should pass on
immediately to another phase of the negotiation. In this phase we will deal
jointly and systematically with matters of a procedural and operational
nature referring principally to the statute of the Verification and Control
Commission for Security Matters which will be an integral part of the Act
and to other regulatory matters."
The Act, and the proposal for negotiation, were not accepted, and the
Contadora process was thus at a standstill.
86. The situation in the area deteriorated, and on 1 October 1986 the
Foreign Ministers of the Contadora Group and the Support Group, meeting in
New York during the United Nations General Assembly, expressed their concern
in a declarations in which they said that they had decided to take a new
peace initiative. For this purpose they visited the five Central American
States, and following that mission, in a communique issued in Mexico in
January 1987, they could do no more than reiterate their "determination to
maintain dialogue with all the countries directly or indirectly involved in
the conflict", and "to continue to push on with diplomatic negotiations"
between the Central American States.
87. A new stage in the situation in Central America began when President
Oscar Arias of Costa Rica, on 15 February 1987, presented the Peace Plan
which bears his name. This plan contemplated new approaches and new
mechanisms for the settlement of the problems facing the countries of the
region. The Foreign Ministers of the Contadora Group and the Support Group,
meeting in Buenos Aires on 13 April 1987, again expressed their concern at
the standstill in the negotiation process since June 1986, emphasized the
importance of President Arias's proposal and noted the state intention of
the Government of Costa Rica to sponsor at the proposed meeting of the five
Central American Presidents at Esquipulas, an agreement by the five
countries to resume negotiation of the Contadora Act together with the
signing of President Arias's proposal.
88. It was in these circumstances that the Presidents of the five Central
American States adopted
on 7 August 1987 a "Plan to Establish a Firm and Lasting Peace in Central
America", known as the Esquipulas II Accord. This agreement comprised a
number of commitments, directed in particular to national reconciliation, an
end to hostilities, democratization, free elections, a half to aid to
irregular forces or insurrectionist movements, and the non-use of territory
to attack other States. The role which was there after to be attributed to
the Contadora Group and the Support Group was defined in Section 7 and
Section 10 (a). Section 7 provided for participation of the Contadora Group
in connection with security, verification and control. Section 10 (a)
provided for an International Verifica-[p 104]tion and Monitoring Commission
whose membership was to include the Foreign Ministers of the Contadora and
Support Group countries. The implementation of the agreement was entrusted
to an executive committee made up of the Foreign Ministers of the five
Central American States. The details of the negotiations which began on this
basis do not have to be gone into here, save that at the joint meeting
between the Central American States and the Contadora Group on 10 December
1987, it was decided that various provisions of the draft Final Act of
Contadora should be re-examined, and that the necessary proposals would be
made by the Central American countries.
89. From this account it is clear that the Contadora process was at a stand
still at the date on which Nicaragua filed its Application. This situation
continued until the presentation of the Arias Plan and the adoption by the
five Central American States of the Esquipulas II Accord, which in August
1987 set in train the procedure frequently referred to as the
Contadora-Esquipulas II process. The question therefore arises, for the
purposes of Article IV of the Pact, whether this latter procedure should be
regarded as having ensured the continuation of the initial procedure without
interruption, or whether on 28 July 1986 that initial procedure should be
regarded as having "concluded", and a procedure of a different nature as
having got under way thereafter. This question is of crucial importance,
since on the latter hypothesis, whatever may have been the nature of the
initial Contadora process with regard to Article IV, that Article would not
have constituted a bar to the commencement of a procedure before the Court
on that date.
90. The views of the Parties in this respect were given in particular in
their replies to a question put by a Member of the Court. Nicaragua
indicated that "the Contadora process has not been abandoned or suspended at
any moment". As for Honduras, it declared that "the Contadora process has
not been abandoned" and that, after the non-signature of the Act of
Contadora, the Contadora Group and the Support Group continued their efforts
up to the time of the approval of the Esquipulas II Accord. Since that time
the process, according to Honduras, continued without interruption.
91. The Court fully appreciates the importance of this concordance of views
between the Parties on the subject of regional initiatives which are highly
regarded by them. But it cannot see in this a concordance of views as to the
interpretation of the term "concluded" in Article TV of the Pact of Bogota,
in relation to the position of the Contadora process at the moment of the
filing of the Nicaraguan Application. In the Court's view, on the basis of
the facts described above the action of the Contadora Group before June 1986
cannot be regarded, for the purposes of the application of the Pact, as on
the same footing as its subsequent action.
While the peacemaking process has continued to bear the name "Contadora",
the fact is that that title has become practically a symbol of all the [p
105] stages traversed and all the multilateral initiatives taken in the last
few years to restore peace to Central America. In fact however the Contadora
process, as it operated in the first phase, is different from the
Contadora-Esquipulas II process initiated in the second phase. The two
differ with regard both to their object and to their nature. The Contadora
process, as has been explained above, initially constituted a mediation in
which the Contadora Group and Support Group played a decisive part. In the
Contadora-Esquipulas II process, on the other hand, the Contadora Group of
States played a fundamentally different role. The five countries of Central
America set up an independent mechanism of multilateral negotiation, in
which the role of the Contadora Group was confined to the tasks laid down in
Sections 7 and 10 (a) of the Esquipulas II Declaration, and has effectively
shrunk still further subsequently.
92. The facts show that the Contadora Group regarded its mission as
completed, at least so far as the negotiation of any substantive accord is
concerned, with the presentation to the Central American States on 6-7 June
1986, of final and definitive Act of Contadora. The signature of that Act
would have crowned the mediation, with a success; its non-signature had the
opposite, effect. Moreover, it should not be over looked that there was a
gap of several months between the end of the initial Contadora process and
the beginning of the Contadora-Esquipulas II process; and it was during this
gap that Nicaragua filed its Application to the Court.
93. The Court concludes that the procedures employed in the Contadora
process up to 28 July 1986, the date of filing of the Nicaraguan
Application, had been "concluded", within the meaning of Article IV of the
Pact of Bogota, at that date. That being so, the submissions of Honduras
based on Article IV of the Pact must be rejected, and it is unnecessary for
the Court to determine whether the Contadora process was a "special
procedure" or a "pacific procedure" for the purpose of Articles II and IV of
the Pact, and whether that procedure had the same object as that now in
progress before the Court.
*
94. The Court has also to deal with the contention of Honduras that
Nicaragua is precluded not only by Article IV of the Pact of Bogota but also
"by elementary considerations of good faith" from commencing any other
procedure for pacific settlement until such time as the Contadora process
has been concluded. The principle of good faith is, as the Court has
observed, "one of the basic principles governing the creation and
performance of legal obligations" (Nuclear Tests, I.C.J. Reports 1974, p.
268, para. 46; p. 473, para. 49); it is not in itself a source of obligation
where none would otherwise exist. In this, case however the contention of
Honduras is that, on the basis of successive acts by Nicaragua culminating
in [p 106] the Esquipulas Declaration of 25 May 1986 (paragraph 81 above),
Nicaragua has entered into a "commitment to the Contadora process"; it
argues that by virtue of that Declaration, "Nicaragua entered into a
commitment with which its present unilateral Application to the Court is
plainly incompatible". The Court considers that whether or not the conduct
of Nicaragua or the Esquipulas Declaration created any such commitment, the
events of June/July 1986 constituted a "conclusion" of the initial procedure
both for purposes of Article IV of the Pact and in relation to any other
obligation to exhaust that procedure which might have existed independently
of the Pact.
**
95. The Court concludes from the foregoing that the third and fourth
objections raised by Honduras to the admissibility of the Application must
be dismissed.
96. The Court would' add the following. It has to determine the
admissibility of an Application brought before it as a matter of law.
Accordingly, in the present case the question whether a particular
"procedure" is, or is not, to be regarded as "concluded" for the purposes of
Article IV of the Pact of Bogota has been appreciated in the light of the
position at the moment of the Nicaraguan Application to the Court. This does
hot mean that the Court is unaware that, subsequent to that date, efforts to
resolve the difficulties existing in Central America took a new lease of
life with the agreement known as Esquipulas II. Nor should it be thought
that the Court is unaware that the Application raises juridical questions
which are only elements of a larger political situation. Those wider issuer
are however outside the competence of the Court, which is obliged to confine
itself to these juridical questions.
**
97. The Court also takes note of the fact that the Contadora Group did not
claim any exclusive role for the process it set in train. Paragraph 34 of
the Preamble to the revised draft Contadora Act of 7 September 1984 provided
the following:
"The Governments of the Republics of Costa Rica, El Salvador, Guatemala,
Honduras and Nicaragua . . .
. . . …………………………………………………………………………………………
Reaffirming, without prejudice to the right to resort to competent
international forums, their willingness to settle their disputes in the
framework of the negotiation process sponsored by the Contadora Group . . .
"
The similar wording of preambular paragraph 35 of the Final Act dated 6 June
1986 makes it clear that the dispute settlement procedures to be [p 107]
adopted under that instrument were not intended to exclude "the right of
recourse to other competent international forums".
**
98. The Court concludes that it has jurisdiction to entertain the present
case under Article XXXI of the Pact of Bogota, and that the Application
filed by Nicaragua on 28 July 1986 is admissible.
***
99. For these reasons,
THE COURT,
(1) Unanimously,
Finds that it has jurisdiction under Article XXXI of the Pact of Bogota to
entertain the Application filed by the Government of the Republic of
Nicaragua on 28 July 1986;
(2) Unanimously,
Finds that the Application of Nicaragua is admissible.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this twentieth day of December, one thousand nine
hundred and eighty-eight, 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 Nicaragua and to the Government of the Republic of Honduras,
respectively.
(Signed) Jose Maria RUDA,
President.
(Signed) Eduardo VALENCIA-OSPINA,
Registrar.
Judge LACHS appends a declaration to the Judgment of the Court.
Judges ODA, SCHWEBEL and SHAHABUDDEEN append separate opinions to the
Judgment of the Court.
(Initialled) J.M.R.
(Initialled) E.V.O.
[p 108]
Declaration by Judge Lachs
The Court's Judgment has necessarily to dwell on and resolve only issues of
procedure (jurisdiction and admissibility); judgments of this type may be
exposed to criticism as being apparently legalistic.
Yet solutions of matters of procedure are essential in the activities of any
court, as they determine its role in the fate of a dispute brought before
it. Such decisions may constitute the Court's last word in such a dispute,
or they may open the door to substantive consideration. In taking these
decisions, this Court has to exercise the utmost care to discourage attempts
to resort to it in any case lacking a proper jurisdictional foundation, but
at the same time not to deny States their right to benefit from its
decisions where such a foundation does exist. Sometimes the mere opening of
the door may bring about a solution to a dispute.
In the present case the Court has had to take decisions which -- as will be
clear from a mere reading of the Judgment -- have not been free from
complexities, placing on judges serious responsibilities, both as regards
analysis of the underlying circumstances of the case, and of a juridical
nature.
The Court has not prejudged the future. Thus the Parties retain their
freedom of action, and full possibilities of finding solutions.
All these considerations have prompted me to give my support to this
decision, voting in favour of the Judgment, as I have in 18 of the 19
Judgments in the elaboration of which I have participated.
(Signed) Manfred LACHS.
[p 109]
SEPARATE OPINION OF JUDGE ODA
1. When considering the jurisdiction of the International Court of Justice
in contentious cases, I take as my point of departure the conviction that
the Court's jurisdiction must rest upon the free will of sovereign States,
clearly and categorically expressed, to grant to the Court the competence to
settle the dispute in question. In the present case the Court may have
reason to interpret the wording of Article XXXI of the Pact of Bogota as
conferring compulsory jurisdiction upon it, particularly in view of the fact
that some States, like the United States and El Salvador, have also
construed it in this way, whether explicitly or by implication, when
evincing their respective positions in relation to the Pact. I accordingly
voted in favour of the first part of the Judgment, but I did so with some
reluctance. This reluctance derives from my doubts as to whether the Pact of
Bogota may not be interpreted differently, owing to the equivocal drafting
of its text, and whether the American States, in adopting the Pact of Bogota
in 1948, actually might not have intended it to confer compulsory
jurisdiction upon the Court. I feel that it is right for me to express my
reservations, which are the following.
I
2. The Court bases its jurisdiction in the present case solely on Article
XXXI of the Pact of Bogota. It finds that
"the commitment in Article XXXI of the Pact is independent of such
declarations of acceptance of compulsory jurisdiction as may have been made
under Article 36, paragraph 2, of the Statute and deposited with the United
Nations Secretary-General pursuant to paragraph 4 of that same Article"
(para. 41),
and that Article XXXI, which "of itself constitutes acceptance of the
Court's jurisdiction" (para. 32), "relates to cases in which the Court can
be seised directly" (para. 47). The Court refrains from suggesting expressly
that this particular provision is one by which its jurisdiction is conferred
in terms of Article 36, paragraph 1, yet denies that Article XXXI is to be
regarded as a declaration of acceptance of compulsory jurisdiction under
Article 36, paragraph 2, of the Statute.
Turning to Article XXXII, the Court states that it provides for a way of
access to the Court that is distinct from that of Article XXXI (para. 47).
While characterizing Article XXXII as a provision "refer[ring] expressly [p
110] to the jurisdiction which the Court has under Article 36, paragraph 1,
of the Statute" (para. 45), it holds that under that provision "the parties
have, in general terms, an entitlement to have recourse to the Court in
cases where there has been an unsuccessful conciliation" (ibid.), and that
it relates to "those [cases] in which the parties initially resort to
conciliation" (para. 47). The Court concludes that "Articles XXXI and XXXII
provide for two distinct ways by which access may be had to the Court"
(ibid.). At any rate, Article XXXII is deemed, in the Judgment, to be
irrelevant in the present case.
3. In both the written and the oral proceedings Honduras presented an
interpretation quite contrary to that arrived at by the Court. An
interpretation similar to that of Honduras, and equally different from the
Court's position, is also to be found in the official or semi-official
publications of the Organization of American States.
In his report on the Ninth International Conference (Bogota) of American
States that was presented to the Council of the Organization of American
States in November 1948, Mr. Alberto Lleras, the Secretary-General of the
Organization of American States, stated that:
"the Treaty provides for a logical system of measures for pacific settlement
from among which the States may choose; but if their application does not
lead to a solution and the conciliatory stage expires without agreement by
the parties to submit the matter to arbitration, any one of the parties is
entitled to appeal to the International Court of Justice, which has
compulsory jurisdiction under Article 36 of its Statute.
…………………………………………………………………………………………….
The procedures are not given in the Treaty in any order of preference, and
the parties may select the one they consider most appropriate in each case,
without being under obligation to utilize all the procedures. It might
occur, for example, that from the time of disruption of direct negotiations
in a given case there might be agreement to submit the dispute to
arbitration or to the International Court of Justice, without resorting to
conciliation or good offices and mediation. All these procedures presuppose
agreement between the parties having recourse to them. But should the
conciliatory stage pass without producing results -- either because one of
the parties was opposed or because no agreement could be reached -- then
judicial procedure becomes compulsory if one of the parties appeals to the
International Court of Justice." (Annals of the Organization of American
States, Vol. I, No. 1, pp. 48-49.)
Dr. F. V. Garcia-Amador, who was formerly the Director of the Department of
Legal Affairs of the Organization of American States, incorporated these
passages into his annotated book, The Inter-American System, which was
published in 1983 (Vol. I, Part 2, p. 231).
Another book with the same title, The Inter-American System, was [p 111]
published in 1966 by the Inter-American Institute of International Legal
Studies, of which the Secretary-General was Dr. Garcia-Amador. It contained
the statement that:
"The new system established obligatory judicial settlement as the definitive
method for the solution of controversies. . . . [I]t should be pointed out,
above all, that by virtue of Article XXXI the High Contracting Parties
declare that they recognize, in relation to any other American State, the
jurisdiction of the Court as compulsory ipso facto, without the necessity of
any special agreement so long as the present Treaty is in force, in all
disputes of a juridical nature that arise among them concerning. . . There
follow the four categories of disputes listed in paragraph 2 of Article 36
of the Statute of the International Court of Justice. In this sense, the
pact itself constitutes an unconditional declaration of the type foreseen in
that article.
The foregoing notwithstanding, the compulsory nature of the judicial
settlement is subject, to be precise, to the fact that the conciliation
procedure established in the pact or by the decision of the parties has not
led to a solution and, in addition, that the said parties have not agreed on
an arbitral procedure. Only in these circumstances may one of the parties
exercise its right to have recourse to the Court and the other, therefore,
be subject to its jurisdiction (Art. XXXII)." (Pp. 78-79.)
These authoritative interpretations of the Pact of Bogota, which are in
themselves somewhat confusing and ambiguous, strike one as contrary in
certain respects to what the Court concludes in its Judgment. It may be
asked whether the interpretations presented in the official or semi-official
documents of the Organization of American States were ill founded or whether
some reasonable explanation can be given to account for them.
4. My doubts as to whether the unqualified conferral of jurisdiction on the
Court by virtue of Article XXXI, as indicated in the Judgment, is in fact
well founded, also derive from two further considerations.
Firstly, I have concluded that the Court's interpretation of Articles XXXI
and XXXII in the Pact of Bogota appears much less persuasive if one looks at
the meaning given to the terms of the Pact in their context, particularly if
the Pact is compared with two existing multilateral treaties drawn up mainly
for the purpose of the peaceful settlement of disputes and specifically
providing for the compulsory jurisdiction of the International Court of
Justice -- the Revised General Act for the Pacific Settlement of
International Disputes, adopted by the United Nations General Assembly in
1949; and the European Convention for the Peaceful Settlement of Disputes,
adopted at Strasbourg in 1957. I shall examine the terms of the Pact in
paragraphs 5-6 below. [p 112]
Secondly, an additional argument in the Judgment to the effect that:
"It is, moreover, quite clear from the Pact that the purpose of the American
States in drafting it was to reinforce their mutual commitments with regard
to judicial settlement. This is also confirmed by the travaux preparatoires"
(para. 46),
does not seem to reflect the history of the drafting of the Pact of Bogota.
The brief record of developments prior to the Bogota Conference and a
perusal of the travaux preparatoires together make it difficult to conclude
with complete confidence that the American States, when drafting the Pact,
intended to strengthen the jurisdiction of the Court. My interpretation of
"the object and the purpose of the Pact" may, for that reason, differ from
that of the Court in its Judgment (ibid.). An examination of its history
requires a more detailed account (paras. 8-13 below).
II
5. I shall start by examining the meaning to be given to the terms of the
Pact of Bogota in their context. In the first place, if, as suggested in the
Judgment, Article XXXII is an independent clause, distinct from and
additional to Article XXXI, which confers jurisdiction upon the Court under
Article 36, paragraph 1, of the Court's Statute, and if both confer
jurisdiction upon the Court under that Article of the Statute, it may be
asked whether it is not the implicit intention of the Judgment to state
that, while any legal disputes are covered by Article XXXI, other disputes
-- in other words, those which do not fall within the categories specified
in Article XXXI -- shall also be subject to the compulsory jurisdiction of
the Court under Article XXXII.
Certainly, the jurisdiction of the Court comprises "all matters specially
provided for . . . in treaties and conventions in force"(Art. 36, para. 1,
of the Statute), and there are a number of bilateral and multilateral
treaties which specify certain types of disputes as being subject to the
compulsory jurisdiction of the Court Yet is it conceivable that the States
parties to the Pact of Bogota accepted in general terms the Court's
jurisdiction for all "international controversies" (Art. II of the Pact) of
whatever nature, without specifying the types of disputes? In spite of the
wording of Article 36, paragraph 1, of the Statute to the effect that "[t]he
jurisdiction of the Court comprises . . . all matters specially provided for
. . . in treaties and conventions in force", has the idea of collectively
giving such a carte blanche to the Court ever been juridically expressed on
any previous occasion?
Here a distinction has to be made between the typical compromissory clause
which ex hypothesi, if not explicitly, is confined to the subject-matter of
the treaty concerned, and a clause which is part of a general
dispute-settlement convention. In the latter case, if the clause provides
for [p 113] judicial settlement, States (as in the case of the 1949 Revised
General Act and the 1957 European Convention) take care to protect their
sovereignty by specifying the types of disputes which they will consent to
have adjudicated. Accordingly, when I consider the Court's construction of
Article XXXII of the Pact of Bogota, I feel bound to ask: has any other
treaty or convention, comprising such a comprehensive obligation to adhere
to the Court's jurisdiction, ever in fact existed? Certainly not.
This leads to an alternative interpretation of Article XXXII, namely, that
this particular Article may only have any significance if the conditions
found in it qualify the jurisdiction in the preceding Article, Article XXXI.
In other words, the parties may have recourse to the Court in respect of the
disputes specified in Article XXXI with the qualifications stated in Article
XXXII.
The Spanish version of Article XXXII, second sentence, states as follows:
"La jurisdiction de la Corte quedara obligatoriamente abierta conforme al
inciso 1[DEGREE] del articulo 36 del mismo Estatuto",
which may be translated into English word for word as:
"The jurisdiction of the Court will remain obligatorily available in
accordance with Article 36, paragraph 1, of the said Statute."
This wording may properly be interpreted as implying that the jurisdiction
of the Court, mentioned in Article XXXII, is the same as that of the
previous Article, Article XXXI, and is therefore also subject to the
conditions of that Article. To refer to the French version of the text (see
Judgment, para. 45) to support the contrary interpretation does not seem to
me to be acceptable.
6. The Court is content to interpret Article XXXII in the sense that the
reference, in that provision, to the procedure of conciliation is meant
simply to imply that the parties may have recourse to the Court in the event
of the failure, of that procedure. The Court remains silent with regard to
the curious fact that, while that Article specifies the occasional failure
of conciliation, it does not mention the failure of other pacific procedures
established in the Pact, such as good offices, mediation, or investigation.
It may be useful to look at the comparable treaties providing a general
system for the peaceful settlement of disputes, as mentioned previously. The
1949 Revised General Act clearly provides in an unequivocal manner for the
obligation of judicial settlement, providing that:
"All disputes with regard to which the parties are in conflict as to their
respective rights [including in particular those mentioned in Art. 36, para.
2, of the Statute] shall . . . be submitted for decision to the
International Court of Justice, unless the parties agree . . . to have
resort to an arbitral tribunal." (Art. 17.)(United Nations, Treaty Series,
Vol. 71, p. 101.) [p 114]
There is also an obligation in parallel to submit to the procedure of
conciliation. Any dispute of a non-legal nature which fails to reach a
solution through conciliation is to be brought before an arbitral tribunal
-- and not the Court (Art. 21).
In the 1957 European Convention it is stated that:
"The High Contracting Parties shall submit to the judgement of the
International Court of Justice all international legal disputes . . .
including, in particular, those [mentioned in Art 36, para. 2]." (Art
I.)(United Nations, Treaty Series, Vol. 320, p. 243.)
Disputes not falling within the scope of judicial settlement are to be
submitted to the procedure of conciliation, and disputes considered as being
other than of a legal nature and which have not been settled by conciliation
are to be submitted to arbitration -- not to the Court (Art. 19).
These two treaties each contain a single article providing for the
compulsory submission of legal disputes to the Court, and are without any
doubt conceived as "treaties and conventions in force" under Article 36,
paragraph 1, of the Statute, "specially provid[ing] for" "all matters" which
"[t]he jurisdiction of the Court comprises". In addition, reference to
conciliation is obligatory for those cases which do not fall within the
scope of the compulsory jurisdiction of the Court and, if conciliation
fails, there remains an obligation of arbitration.
If there is no obligation of conciliation preceding recourse to the Court,
why should the Pact of Bogota have had to refer simply to the occasional
cases in which conciliation fails? Should Article XXXII not rather be
interpreted as meaning that recourse to the procedure of conciliation is a
prerequisite for the compulsory referral of a dispute to the Court under the
Pact of Bogota?
7. I do not venture to suggest that this interpretation of the Pact of
Bogota is the only correct one, because it may also not prove entirely
convincing in the overall context of the Pact. This is because the
requirement of conciliation prior to resort to the Court does, not seem
wholly compatible with the submission of legal disputes to the Court, even
in the light of the two other general dispute-settlement treaties, as
mentioned above. A clue to solving this paradox of the Pact may well be
found through an examination of the process within which the system of the
peaceful settlement of disputes -- the concept of judicial settlement in
parallel with the procedure of conciliation -- had evolved up to 1948 in the
forum of American States and the process within which the Pact was drafted
at the Bogota Conference. This will also indicate that there was not the
slightest idea, in either of these processes, of enacting in general terms,
in any treaty, the compulsory jurisdiction of the former or present Court
for either legal or nonlegal disputes -- still less for both. [p 115]
III
8. At the Conference of Conciliation and Arbitration convened in Washington
in January 1929, two treaties were signed by 20 American States: the General
Convention of Inter-American Conciliation and the General Treaty of
Inter-American Arbitration. The States parties to the former treaty agreed
"to submit to the procedure of conciliation . . . all controversies of any
kind . . . which it may not have been possible to settle through diplomatic
channels" (Art. 1). The latter treaty provided for compulsory arbitration
for
"all differences of an international character [arising] by virtue of a
claim of right . . . which if has not been possible to adjust by diplomacy
and which are juridical in their nature by reason of being susceptible of
decision by the application of the principles of law" (Art. 1).
In neither of these treaties, however, was there any mention of a submission
of disputes to the Permanent Court of International Justice which had
already been in existence since 1922. (As of 1948 the former treaty was
effective for 18 States and the latter for 16 States.)
The Juridical Committee of the Pan American Union proposed, in March 1944, a
Draft Treaty for the Coordination of Inter-American Peace Agreements which
co-ordinated the separate treaties of the past into a single instrument
(Inter-American Juridical Committee, Recommendations and Reports, Official
Documents, 1942-1944, p. 53) and further prepared the draft of an
Alternative Treaty Relating to Peaceful Procedures (ibid., p. 69). It was
proposed that the States parties should declare that:
"the settlement of disputes or controversies of any kind that may arise
among them shall be effected only by the pacific means which have the
sanction of international law" (Art. I),
and bind themselves to submit to arbitration all differences, as defined in
the 1929 Arbitration Treaty, which it had been impossible to adjust not only
by diplomacy but also by mediation (Art. VI). The draft treaty also
suggested, as an alternative to submission to arbitration, referral
"by mutual agreement . . . to a court of international justice in accordance
with the terms of a treaty to which they may both be parties, or to the
procedure of investigation and conciliation set forth in the present Treaty"
(Art. VII).
In parallel, the draft treaty laid down the obligation of recourse to the
conciliation procedure for all disputes which it had not been possible to
settle by direct negotiation, by mediation, or by the procedure of
arbitration (Art. XIII). In its accompanying report the Juridical Committee
stated as follows:
"The Juridical Committee is of the opinion that the procedure of arbitration
should be put in the foreground and that attention should [p 116] be
directed to it as the preferable method of settling disputes of a juridical
character which it has not been possible to settle by diplomatic
negotiation. An alternative to the procedure of arbitration would be the
procedure of judicial settlement in case the States in controversy were
parties to a treaty providing for the judicial settlement of juridical
disputes and are in accord to have recourse to that procedure. At the same
time, while arbitration and judicial settlement are recognized by the
Committee as being in principle the proper procedures for the settlement of
juridical disputes, it would seem unreasonable to deny to the parties the
right to have recourse to the procedure of conciliation for the settlement
of such disputes if they are in accord in preferring that more elastic
procedure. . . .
Arbitration is thus obligatory for all juridical disputes which the parties
do not, by mutual agreement, prefer to settle by the procedure of judicial
settlement or of conciliation. . . ." (Recommendations and Reports, Official
Documents, 1942-1944, pp. 89-90.)
With the end of the war in sight, the American States sent representatives
to Chapultepec in February/March 1945 for the Inter-American Conference on
Problems of War and Peace. The Conference recommended to the Inter-American
Juridical Committee the "immediate preparation of a draft of an
'Inter-American Peace System' which will coordinate the continental
agreements for the prevention and pacific solution of controversies" (The
International Conferences of American States, Second Supplement, 1942-1954,
p. 101). The Juridical Committee accordingly prepared a draft of such a
system (Comite Juridico Inter-americano, Recomendaciones e Informes,
Documentos Oficiales, 1945-1947, p, 49; English text supplied by the
Organization of American States), which provided that the States parties
would thereby agree to have recourse at all times to peaceful procedures
(Art. I). In the event that a controversy should arise which could not be
settled by direct negotiations through the usual diplomatic channels, the
States parties would recognize the obligation of having recourse to
inter-American regional procedures such as those of mediation, investigation
and conciliation, arbitration, judicial settlement, or inter-American
consultation (Art. II). The States parties would further:
"recognize the suitability of submitting either to arbitration or to
judicial settlement all controversies which may arise between them which are
legal in their nature by reason of being susceptible of decision by the
application of principles of law" (Art. XVII).
The text was transmitted to the American Governments for their observations.
Some Governments sent observations on the draft (Novena Conferencia
International Americana, Actas y Documentos, Vol. IV, pp. 25-35); among
which were proposals by Honduras and Mexico, which advocated the additional
concept of "recourse to the International Court of Justice". [p 117]
9. Following the end of the Second World War, the Inter-American Conference
for the Maintenance of Continental Peace and Security (Rio de Janeiro) met
in August/September 1947 and recommended that at the forthcoming Ninth
International Conference of American States in Bogota:
"there be studied with a view to approval, institutions which may give
effectiveness to a pacific system of security and among them compulsory
arbitration for any dispute which may endanger peace and which is not of a
juridical nature" (The International Conferences of American States, Second
Supplement, 1942-1954, p. 154).
The Inter-American Juridical Committee accordingly drafted the "Project of
Inter-American Peace System" for discussion by!the delegates to the Bogota
Conference (Actas y Documentos, Vol. IV, p. 6; English text as CB-6-E of the
Documents of the Pan American Union).
That Project was thus prepared as a basis for a new treaty to be adopted
at_Bogota. Articles XXXI and XXXII of the Pact of Bogota, which are relevant
in the present case and to which reference is made in the Judgment,
originate from the provisions in the 1947 Project, as quoted below:
"Part IV. Procedure of Arbitration
Article XVII
The High Contracting Parties bind themselves to submit to arbitration the
controversies of any nature, juridical or non-juridical, which have arisen
or may arise in the future between them and which in the opinion of one of
the parties it has not been possible to settle by diplomatic means or by the
procedures of mediation and investigation and conciliation.
………………………………………………………………………………………………
Article XVIII
Notwithstanding the provisions of the preceding article, it is recognized
that the Parties, if in agreement to do so, may submit their controversies
to the International Court of Justice, when they have accepted previously
its obligatory jurisdiction under the terms of article 36 of the Statute.
The controversies to which this article is applicable are those referring to
the following matters:
(a) The interpretation of a treaty;
(b) Any question of international law;
(c) The existence of any fact which, if established, would constitute a
breach of an international obligation;
(d) The nature and extent of the reparation to be made for the breach of an
international obligation." [p 118]
The report annexed to the 1947 Project explains the ideas underlying the
provisions of this draft:
"24. Part IV of the draft, referring to arbitration procedure,
particularizes:
1. Why arbitration is established for all kind of questions. Whence it is
deduced that those of a juridical nature, as well as those not of that
character, are subject to the said arbitration.
2. Why arbitration is compulsory in every dispute that has not been settled
by procedures of mediation or of investigation and conciliation. Hence, if
for any reason such procedures do not terminate the dispute the latter will
inevitably have to be submitted to arbitration . . .
25. Article 18 permits the parties, if they agree, to submit to the
International Court of Justice, whenever they have previously accepted its
compulsory jurisdiction, the disputes enumerated in article 36 of the
Statute thereof.
Consequently, arbitration continues to be the general rule in regard to such
disputes. But, by common consent, the parties may resort to the Court. In
the absence of such consent, the arbitration procedure provided for in the
Treaty shall be compulsory. . ." (Actas y Documentos, Vol. IV, p. 20;
English text, p. 25.)
Dr. Charles G. Fenwick, Director of the Department of International Law and
Organization of the Pan American Union, made an analytical comparison
between the 1945 and the 1947 texts in a memorandum dated January 1948
(ibid., Vol. IV, pp. 35-39):
"5. In contrast to the 1945 Project, the 1947 Project submitted by the
Juridical Committee establishes arbitration as the final and definitive
procedure that should be followed in all cases. . . . The fundamental change
in the 1947 Project appears in Article XVII, which refers to arbitration
procedure. The High Contracting Parties commit themselves to submit to
arbitration all disputes of any nature, be they juridical or not which, in
the opinion of one of the Parties, it may not have been possible to resolve
by any of the procedures of mediation, investigation or conciliation,
established in the preceding articles. In this fashion the Juridical
Committee has tried to offer a final and definitive procedure such as may
assure the resolution of all controversies be they of a political or
juridical character." (Translation from the Spanish text.)
The following three points may be seen as distinctive characteristics of the
1947 Project. Firstly, the member States agreed in general terms to make use
of good offices and mediation, investigation and conciliation, and
arbitration' and judicial settlement; secondly, the member States bound
themselves to submit to arbitration such disputes of any nature, juridical
or non-juridical, as it had not been possible to settle by diplomatic means
or by the procedures of mediation, investigation and [p 119] conciliation;
thirdly, notwithstanding the obligation of the procedure of arbitration, it
was recognized as indicated in Article XVIII, which was linked to the
preceding Article, that the member States might submit to the International
Court of Justice such disputes as were enumerated in Article 36, paragraph
2, of its Statute. This would be possible only if the parties were "in
agreement to do so" and when they had "accepted previously its obligatory
jurisdiction under the terms of Article 36 of the Statute" (Art. XVIII).
Thus the 1947 Project did not give any indication that the American States
should be subject to compulsory settlement of disputes by the International
Court of Justice in terms of either the first or the second paragraph of
Article 36 of the Statute.
10. Both before and during the Bogota Conference, a number of States either
commented on the Committee's 1947 text or proposed amendments to it (Actas y
Documentos, Vol. IV, pp. 39-79). As regards judicial settlement, Brazil and
Mexico made proposals after the Conference had commenced. The former
proposed rewording Article XVIII so as to provide that the obligation of
arbitration would not prejudice the right of direct recourse to the
International Court of Justice in cases in which the jurisdiction of that
Court had been accepted as compulsory by both parties, and where the dispute
was to be submitted by common consent to the judgment of the Court. The
latter proposed that the judicial procedure should be initiated in cases in
which the parties had previously accepted the compulsory jurisdiction of the
International Court of Justice, and that the obligation of arbitration
should be maintained, except in cases of recourse to judicial procedure, for
such differences of any nature, juridical or non-juridical, as they had not
been able to settle by diplomatic means or by any other pacific procedure.
Honduras proposed as late as 22 April, in the last stage of the Conference,
a draft resolution on the jurisdiction of the International Court of
Justice, in which the Bogota Conference would merely recommend that the
American States should formulate and deposit, as soon as possible,
declarations under the optional clause of the Court's Statute.
In none of those proposals presented by various Governments was there,
however, any indication that the forthcoming treaty would itself become a
treaty conferring compulsory jurisdiction upon the Court under Article 36,
paragraph 1, of the Statute.
*
11. Having thus considered how the American States handled the matter of the
judicial settlement of disputes in parallel with the procedure of
arbitration and conciliation in the process leading up to the 1948
Conference of Bogota, and having shown that there was at that time not even
the slightest idea of granting compulsory jurisdiction to the previous or
present Court, I now wish to look at the drafting history of those provi-[p
120]sions of the 1948 Pact of Bogota, which -- depending on their content --
might allow the Court to sustain the concept of the compulsory jurisdiction
of the International Court of Justice. In fact, as the Court suggests, the
travaux preparatoires:
"must of course be resorted to only with caution, as not all the stages of
the drafting of the texts at the Bogota Conference were the subject of
detailed records" (Judgment, para. 37).
The reader may well be puzzled by the way in which certain texts used in the
1947 Project suddenly disappeared without trace, while new texts were
incorporated into the 1948 Pact without substantive discussion. The picture
given in the Judgment in this connection (para. 46) does not appear to be
complete. I will endeavour to trace the way in which the text developed at
the Bogota Conference, as indicated in the travaux preparatoires.
12. In principle, the subject of the peaceful settlement of disputes was
assigned to Committee III, which commenced its work on 2 April (Novena
Conferencia International Americana, Actas y Documentos, Vol. IV, p. 98). It
in turn entrusted the work to Sub-Committee III-A, which consisted of the
delegates of all the participating States. Thereafter, Committee III did not
hold a meeting until 27 April, when its second meeting took place (ibid., p.
106). Sub-Committee III-A, during its first three meetings from 7 to 9 April
(ibid., pp. 222-229), listened to a general discussion on the subject by
some delegates. It then adjourned its proceedings for two weeks and, at its
fourth (and final) meeting on 24 April, divided into three working groups
(ibid., p. 230). Sub-Committee III-A did not meet after that time. There is
no record of the working groups, except for a report of the first working
group appointed to study general norms of the Inter-American System of Peace
(ibid., p. 80), which dealt with Part I ("General Obligation to Settle
Disputes by Peaceful Procedures") of the 1947 Project as well as with
Chapter II ("Pacific Settlement of Disputes") of the Project of the Organic
Pact.
Committee III discussed the subject at its second, third and fourth meetings
on 27 and 28 April (ibid., pp. 106-220), The discussions on Part IV
("Procedure of Arbitration") commenced at the third meeting in the afternoon
of 27 April. The Judgment states, in this respect, that
"At that meeting . . . the delegate of Colombia explained to the Committee
the general lines of the system proposed by the Sub-Committee which had
prepared the draft; the Sub-Committeee took the position 'that the principal
procedure for the peaceful settlement of conflicts between the American
States had to be judicial procedure before the International Court of
Justice'." (Para. 46.)
In fact, the delegate of Colombia was requested by the Chairman of Com-[p
121]mittee III to speak about the work of the working groups appointed on 24
April. He, himself, was only a member of the third working group dealing
with Parts IV, V and VI ("Procedure of Arbitration", "Procedure of Judicial
Settlement" and "Final Provisions")(and composed of the delegates of
Argentina, Brazil, Colombia, Honduras, the United States, Mexico and
Uruguay), which did not produce any official documentation. The delegate of
Colombia began to speak on the work of Sub-Committee III-A, though that
Sub-Committee had neither prepared any draft nor taken any position, while,
as stated above, there had been general debates between several delegates in
its early stages (between 7 and 9 April), but had concluded its meeting by
dividing the work into three working groups. It might have been possible, at
least according to the statement of the Chairman of Committee III, that the
working groups had prepared some articles.
The statement made by the delegate of Colombia, as quoted in the Judgment,
and as mentioned above, was followed up by a remark to the effect that:
"[the Sub-Committee] consequently established Part IV of the draft, which
contains the rules concerning that procedure. At the same time, it decided
that the procedure of arbitration should be a supplementary, subsidiary
procedure, for cases in which the judicial procedure could not produce
results." (Actas y Documentos, Vol. IV, p. 156.)
The delegate of Colombia referred to the proposal made a few days earlier by
Honduras (as indicated above) and continued to explain the current status of
"signatures" and "ratifications" of the optional clause by the American
States. In spite of what he stated (and what was quoted in the Judgment),
the delegate of Colombia seems to have done no more than report upon the
delegates' comments during the early stages of Sub-Committee III-A. He then
turned to subjects such as "reservation of domestic jurisdiction" among
others, which have no direct relevance in this instance. His statement
concluded with a reference to the general system of peaceful settlement of
disputes. He did not intend to discuss draft Articles XVII and XVIII, and
did not discuss them.
The discussion of the first Article in Part IV of the Project, that is the
draft Article XVII, started much later, when Committee III decided to
continue its meeting later that afternoon instead of postponing it until the
following day. The text of draft Article XVII, which was thus introduced on
27 April, read:
"In conformity with Article 36 of the Statute of the International Court of
Justice, the High Contracting Parties declare that they recognize in
relation to any other American State, the jurisdiction of the Court as
compulsory ipso facto, without the necessity of any [p 122] special
agreement so long as the present Treaty is in force, in all disputes of a
juridical nature that arise among them concerning:
(a) The interpretation of a treaty;
(b) Any question of international law;
(c) The existence of any fact which, if established, would constitute the
breach of an international obligation; or
(d) The nature or extent of the reparation to be made for the breach of an
international obligation. . . ." (Actas y Documentos, Vol. IV, p. 161.)
The wording of this text was quite different from the text of Article XVIII
of the 1947 Project. We do not know who drafted it or when it was drafted,
though we can probably guess that it was one of the matters in the hands of
the seven-delegate working group, as mentioned above. The purpose behind the
drafting of the newly formulated text in terms so different from those of
the 1947 Project is unknown.
The way in which this particular Article was dealt with by Committee III is
fully explained in the Judgment (para. 37) and may not require any further
explanation, except that the suggestion that the words "any other American
States" should be replaced by the words "any other Member State of the
Organization" was "approved" (Actas y Documentos, Vol. II, p. 162). The
references in the Judgment to the statements made by the delegates of the
United States, Mexico, Colombia, Ecuador and Peru (para. 37) are quite
correct It may be interesting to note however that, as the travaux
preparatoires clearly indicate, the text of draft Article XVII was neither
formally "approved" nor subjected to a vote, even though the inclusion of an
additional article was "rejected".
With regard to draft Article XVIII (the text of which must have been
distributed together with Article XVII, but which was not included in the
travaux preparatoires), Committee III agreed that the provision would be
taken up by the working group on the following day (Actas y Documentos, Vol.
II, p. 167). On that day, 28 April, Committee III received the following
proposed text reported by the working group:
"When the conciliation procedure previously established in the present
Treaty or by agreement of the parties has not led to a solution, and the
said parties have not agreed upon an arbitral procedure, either of them
shall be entitled to have recourse to the International Court of Justice in
the manner prescribed in Article 40 of the Statute thereof. The Court shall
have compulsory jurisdiction in accordance with Article 36, paragraph 1, of
the said Statute." (Ibid., p. 171.)
This text, which is quite different from that of 1947, seems also to have
differed from the text of the previous day, as a member (delegate of Brazil)
of the working group stated that draft Article XVIII had been replaced by
this new text. [p 123]
No delegate spoke in support of the new text, and no discussion was held.
The words "has not led to a solution" were replaced by "does not lead to a
solution" upon the suggestion of Colombia. The text thus amended was
"approved" by the affirmative votes of 9 of the 14 representatives(13 States
and the Pan American Union) who were present (Actas y Documentos, Vol. II,
p. 171).
13. The text of the Inter-American System of Pacific Settlement (ibid., p.
83), as adopted at Committee III, was then sent to the Committee on
Co-ordination and to the Drafting Committee. The Committee on Co-ordination
met on five occasions between 26 April and 1 May (ibid., pp. 435-590) and
took up the text of the Inter-American System of Pacific Settlement at its
fourth meeting on 29 April (ibid., p. 538). The title was changed to
"American Treaty of Pacific Settlement". The draft articles were renumbered,
but no substantive discussion took place concerning the texts with which we
are concerned. The Drafting Committee did not leave any record, other than
one very brief and general report, which tells us nothing (ibid., p. 591).
The Pact of Bogota was approved by acclamation at the plenary session on 30
April, without further discussion (Actas y Documentos, Vol. I, p. 234). The
Final text of the Pact of Bogota was different from the text approved by
Committee III in that the expressions "in conformity with Article 36 of the
Statute of the International Court of Justice" and "in relation to any other
Member States of the Organization" in Article XXXI (formerly draft Article
XVII) were replaced by "in conformity with Article 36, paragraph 2, of the
Statute of the International Court of Justice" and "in relation to any other
American States".
14. I have just shown that the process whereby the provisions of Articles
XXXI and XXXII (formerly Articles XVII and XVIII in the 1947 Project) were
drafted at the Bogota Conference remains a mystery. Unlike the closely
linked provisions of Articles XVII and XVIII in the 1947 Project, the new
texts of draft Articles XVII and XVIII placed before Committee III of the
Conference (the authors and sponsors of which are unknown) seemed to be
quite distinct in their nature. No delegate at the Conference at any time
suggested that the provisions of the draft would constitute an acceptance of
the Court's jurisdiction and relate to cases in which the Court could be
seised directly. One fails to understand how the concept of Articles XVII
and XVIII of the 1947 Project, that is, compulsory arbitration and the
alternative of referral to the Court where the parties had given their
consent, came to be replaced by the new Articles XXXI and XXXII of the Pact,
respectively.
What is clear is that, as the Judgment properly records (para. 37), although
some delegates drew
the attention of the Conference to possible interpretations drawn from the
newly drafted text of draft Article XVII (now Article XXXI), there was no
further discussion among the other delegates and that another proposed
version of draft Article XVIII (now Article XXXII) was not even discussed.
The delegates of the American [p 124] States gathered in 1948 at Bogota with
the lofty goal of settling international disputes by peaceful means. Yet
what they expected from the Court is still a mystery. This leads me to
conclude that the interpretation given by the Court of "the object and the
purpose" of the Pact is not sufficiently supported.
IV
15. In conclusion, I would, like to add the following comments. It is
certainly possible for States jointly to assume the obligation to accept the
Court's jurisdiction over certain types of disputes under Article 36,
paragraph 1, of the Statute, and they can also jointly declare their
acceptance of the Court's jurisdiction over legal disputes, as provided for
in Article 36,paragraph 2. In cases of general dispute-settlement treaties,
the acceptance of jurisdiction over legal disputes in the framework of
Article 36, paragraph 1, of the Statute, can be equated, in effect, with the
acceptance of jurisdiction under Article 36, paragraph 2. Such an obligation
must, however, be assumed in an unequivocal manner. For example, as
previously stated, the 1949 Revised General Act for the Pacific Settlement
of International Disputes provides that disputes "shall be submitted for
decision [to the Court]" and the 1957 European Convention for the Pacific
Settlement of Disputes states that the parties "shall submit [disputes] to
the judgment of the . . . Court".
It cannot be denied that the parties to those two treaties accept the
Court's jurisdiction within the limits of Article 36, paragraph 2, of the
Statute, though it remains to be seen whether the instruments constituting a
declaration of acceptance of the Court's jurisdiction should not have been
deposited under Article 36; paragraph 4, of the Statute, or whether the
simple registration of the treaties in question with the United Nations
Secretariat, pursuant to Article 102 of the United Nations Charter, might be
looked upon as a substitute for the requirement of that paragraph of the
Statute.
I hesitate to assimilate the Pact of Bogota to those two treaties for the
following reasons: firstly, as I explained above, the existence of Article
XXXII complicates the Pact's system of peaceful settlement because this
particular Article, by its ambiguous content, casts doubt upon the intention
of the parties to accept the Court's compulsory jurisdiction. Secondly,
unlike the two other treaties of a general dispute-settlement nature, the
Pact of Bogota, although providing for a general obligation to settle
international disputes, does not specify the use of any particular
procedure, except for resort to the Court in certain cases, and thus the
choice of peaceful settlement procedures is to be made jointly by the
parties. Thirdly, and more significantly, it will be clearly apparent from
[p 125] what has been stated above that no delegate at the Bogota Conference
ever expressed his country's readiness to confer compulsory jurisdiction on
the Court by virtue of the forthcoming Treaty, although some delegates were
aware of the possible implication of the text to be adopted. It is
accordingly true to say that the present text of the Pact emerged without
any clear indication of the parties' real intention.
16. The Permanent Court of International Justice, as quoted in the Judgment
(para. 16), once mentioned
"the fact that [the Court's] jurisdiction is limited, that it is invariably
based on the consent of the respondent and only exists in so far as this
consent has been given. . ." (case concerning Mavrommatis Palestine
Concessions, 1924, P.C.I.J., Series A, No. 2, p. 16).
It also stated:
"When considering whether it has jurisdiction or not, the Court's aim is
always to ascertain whether an intention on the part of the Parties exists
to confer jurisdiction upon it." (Case concerning the Factory at Charzow,
Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 32.)
The present Court accepted the validity of this principle in the
Interpretation of Peace Treaties case, in which it stated that "[t]he
consent of States, parties to a dispute, is the basis of the Court's
jurisdiction in contentious cases" (I.C.J. Reports 1950, p. 71). The Court,
in the case of the Monetary Gold Removed from Rome in 1943 (Preliminary
Question, Judgment, I.C.J. Reports 1954, p. 32), referred to "a
well-established principle of international law embodied in the Court's
Statute, namely, that the Court can only exercise jurisdiction over a State
with its consent". More recently, the fundamental principle mentioned in the
1950 case was reiterated in the Application for Revision and Interpretation
of the Judgment of 24 February 1982 in the Case concerning the Continental
Shelf (Tunisia/Libyan Arab Jamahiriya)(Tunisia v. Libyan Arab
Jamahiriya)(I.C.J. Reports 1985, p. 216).
In sum, one cannot lay too much stress upon the paramount importance of the
expression of the acceptance of the Court's jurisdiction, which is
invariably required for the Court to entertain a case, as the first and
critical task of the Court is always to ascertain the intention of the
Parties. I doubt whether this particular point has been given all the weight
due to it.
(Signed) Shigeru ODA.
[p 126]
SEPARATE OPINION OF JUDGE SCHWEBEL
I have voted in favour of the Judgment of the Court because I am in
essential, though not entire, agreement with its two principal holdings.
I believe that the Court has jurisdiction in this case accorded by Article
XXXI of the Pact of Bogota, a jurisdiction which is not qualified by the
conditions found in Article XXXII. Such doubt as I have on this question is
reflected in the analysis which Judge Oda's opinion in this case sets forth,
particularly his quotations of the authoritative conclusions of the former
Secretary-General of the Organization of American States and the former
Director of the Legal Department of the OAS, Dr. F. V. Garcia-Amador, who do
appear to condition jurisdiction under Article XXXI of the Pact upon
fulfilment of the prerequisites prescribed by Article XXXII. It is clear
that those prerequisites -- notably, conciliation -- have not been fulfilled
in this case. Nevertheless, I do not find in the abbreviated analyses of
these authorities reasons which lead me to conclude that the Court's
construction of Article XXXI as independent of Article XXXII is unfounded.
These two Articles, or their face, each appear to accord the Court an
independent jurisdictional title. It may of course be asked why a single
treaty should provide two independent routes to the Court's compulsory
jurisdiction. Perhaps the answer to that question is that Article XXXII may
have been intended to embrace disputes not of a juridical nature as well as
"disputes of a juridical nature".
The admissibility of Nicaragua's Application raises more substantial doubts,
by reason of the operation of Articles II and IV of the Pact of Bogota.
Believing as I do that jurisdiction in this case can only be founded on the
Pact of Bogota, and that accordingly Nicaragua's Application must be
considered subject to the provisions of that Pact, those Articles initially
appear to render Nicaragua's Application inadmissible because the sub-stance
of that Application is clearly comprehended by the Contadora process. That
process, not being a pacific procedure established by the Pact, surely is a
"special procedure", agreed upon by Nicaragua and Honduras as well as other
States, which if successfully concluded, would permit them to arrive at a
solution of Nicaragua's essential causes of action. Moreover, the Contadora
process in any event is a "pacific procedure" (it can hardly be a warlike
procedure), from which it follows that, according to Article IV of the Pact,
being a pacific procedure which "has been initiated . . . by agreement
between the parties" before the bringing of Nicaragua's Application, "no
other procedure may be commenced until that procedure is concluded". The
Court avoids confronting more than one [p 127] knotty problem of the
interpretation of Articles II and IV by its holding that the Contadora
process was "concluded" at the time when Nicaragua filed its Application. It
so holds despite the common view of the Parties that that process"has not
been abandoned or suspended at any moment". The Court maintains that it
appreciates the importance of this concordance of views between the Parties;
nevertheless, it decides that the Contadora process, at any rate in the
phase directed towards resolution of the substance of the issues before it,
had concluded by 28 July 1986. This is, for the reasons set out by the
Court, one plausible interpretation of the facts; one might also arrive at
another plausible interpretation as the Parties appear to do; but I do not
think that the Court's interpretation is untenable.
My most substantial reservations about the Court's Judgment turn upon its
holdings of paragraph 54, which are in answer to the objections by Honduras
to What has been termed the "serial" nature of the Applications which have
been brought by Nicaragua in three inter-related cases against the United
States of America in 1984 and against Costa Rica and Honduras in 1986 (see
Lori Fisler Damrosch, "Multilateral Disputes", in Damrosch, ed., The
International Court of Justice at a Crossroads, 1987, pp. 376, 379).
In its Memorial Honduras recalls that, by its Application of 9 April 1984
against the United States, Nicaragua submitted to the Court a set of facts
forming part of the general conflict existing in Central America, and that,
one month after the Judgment of the Court in that case, Nicaragua submitted
to the Court, by its Applications against Costa Rica and Honduras, a second
and a third set of facts pertaining to the same conflict. Honduras maintains
that the
"overall result of this behaviour on the part of Nicaragua constitutes . . .
an artificial and arbitrary dividing up of the general conflict existing in
Central America. Moreover, this result may have negative consequences for
Honduras as a Defendant State before the Court, since it affects the
guarantee of a sound administration of justice and undermines the principle
laid down in Article 59 of the Statute of the Court.
2.07. In fact, the successive Applications lodged by Nicaragua have
presented to the Court, for Nicaragua's convenience, some facts forming part
of the general conflict in Central America. But it is obvious that some
other facts while appertaining to the same general conflict, are inevitably
absent from the proceedings before the Court.
The power granted to the Parties under Article 80 of the Rules of Court [to
make counter-claims] does not totally remove this negative consequence; for
it is possible for the State against which the claim is brought not to
appear before the Court, as occurred in the case concerning Military and
Paramilitary Activities in and against Nicaragua [p 128] after the Judgment
of 26 November 1984. In this situation, the Court faces a great difficulty
in the determination of the facts, as was acknowledged in the Judgment of 27
June 1986. But as regards subsequent disputes before the Court forming part
of the same general conflict in the Region, if the facts in the previous
case affect other States, the Defendant States in later proceedings will
find themselves obliged to fill in previous gaps or to put other
interpretations on the same facts, none of which would appear to be in
conformity with the requirements of a sound administration of justice.
On the other hand, the successive Applications lodged by Nicaragua from 1984
onwards have another prejudicial effect for the Defendant States in later
proceedings, as is the case of the Republic of Honduras. This negative
consequence arises from the assessment of facts in previous proceedings,
those facts forming part of the same general conflict existing in Central
America; and it may gravely undermine the principle of relativity of
international adjudications laid down in Article 59 of the Statute of the
Court." (Memorial of Honduras, paras. 2.06-2.07.)
The answers which paragraph 54 of the Court's Judgment gives to these
contentions of Honduras in my view are not fully adequate, in the light of
the following considerations.
In the proceedings before the Court in the case concerning Military and
Paramilitary Activities in and against Nicaragua, Nicaragua levelled grave
accusations against not only the United States, but against Honduras and
Costa Rica. It claimed that those two States -- most particularly Honduras
-- were acting in concert with the United States to support its use of
military force against Nicaragua and its intervention in Nicaragua's
internal affairs, especially by permitting "mercenaries" to operate from
their territories against Nicaragua. Despite these accusations, Nicaragua
did not in 1984 bring suit against either Honduras or Costa Rica, even
though both of those countries at that time adhered to the Court's
compulsory jurisdiction under the Optional Clause in the most unrestricted
terms. Rather, Nicaragua maintained that its Application made "no claim of
illegal conduct by any State other than the United States", and that it
sought "no relief . . . from any other State".
For its part, in view of these accusations against Honduras and Costa Rica
-- and Nicaragua's further claim that El Salvador's armed forces were acting
in the service of the United States -- and in view of its own contention
that its actions against Nicaragua were measures taken in collective
self-defence of Nicaragua's neighbours particularly El Salvador, against
armed attack by Nicaragua, the United States maintained that the Court could
hot adjudicate Nicaragua's allegations against the United [p 129] States
without also passing upon the lawfulness of the actions of Honduras, Costa
Rica and El Salvador. These three States, the United States consequently
contended, were indispensable parties and, in their absence, the Court
should not proceed to render judgment on the merits.
Not only did the Court reject this contention but, shortly before, when El
Salvador, in a declaration of intervention which strongly supported United
States claims that it was under armed attack by Nicaragua and acting in
collective self-defence with the United States, sought to exercise its
"right to intervene in the proceedings" -- the quotation is from the terms
of Article 63 of the Statute -- the Court denied its intervention. Its terse
Order, which is virtually devoid of reasoning, held that the declaration of
intervention was "inadmissible inasmuch as it relates to the current phase
of the proceedings" -- i.e., jurisdiction and admissibility; a ground which
has no basis in the terms or purpose of Article 63. As has been widely
recognized, that denial consequently is difficult to reconcile with the
Statute and, since El Salvador was not accorded a hearing, more difficult
still to reconcile with the explicit provision of Article 84 of the Rules of
Court that, where there is objection to the admissibility of a declaration
of intervention, "the Court shall hear the State seeking to intervene and
the parties before deciding". The shutting out of El Salvador's
participation not only affected the subsequent content and course of the
proceedings. It appears also to have affected the subsequent decision of the
United States to withdraw from the proceedings, in view of the fact that one
of the two principal grounds of withdrawal cited by the United States on 18
January 1985 was the Court's summary rejection of El Salvador's application
"without giving reasons and without even granting El Salvador a hearing, in
violation of El Salvador's right and in disregard of the Court's own rules".
While the Court in rejecting El Salvador's intervention at the stage of
jurisdiction and admissibility implied that it was open to intervention by
El Salvador at the stage of the merits, and elsewhere indicated that
Honduras and Costa Rica as well as El Salvador had statutory possibilities
of intervention open to them,
it is obvious that its treatment of El Salvador could hardly: have, operated
to encourage such interventions. Nor, for their part, did El Salvador,
Honduras or Costa Rica in any event manifest any inclination to have their
actions, some of which were the objects of Nicaraguan accusation, subjected
to the Court's judgment, even if, in fact, the Judgment on the merits
ultimately rendered by the Court on 27 June 1986 inevitably -- by the nature
of Nicaragua's Application and accusations add the defence of the United
States -- did pass upon those actions, factually and legally.
Promptly after the rendering of the Court's Judgment of 27 June 1986 against
the United States, Nicaragua discovered after all (contrary to what it had
pleaded in its case against the United States) that it did have legal [p
130] claims against Honduras and Costa Rica and filed its Applications of 28
July 1986 against both States. Should the instant case reach the phase of
the merits, it is to be expected that Nicaragua will invoke, as it has
already invoked, against Honduras the findings of fact and conclusions of
law reached by the Court in the Military and Paramilitary Activities in and
against Nicaragua case not only against the United States but, at least
inferentially, against Honduras, even though Honduras was not a party to
that case. As noted, it was Nicaragua's choice not to initiate suit against
Honduras in 1984, despite its accusations against Honduras and Honduras's
unreserved adherence to the Optional Clause which then was in force.
Nicaragua has rather preferred to pursue serial actions, however prejudicial
they may be to what Honduras describes as the sound administration of
justice. That such an action may indeed be prejudicial is not open to doubt.
If the Court's Judgment of 27 June 1986, which rejects on factual and legal
grounds the defence of the United States that it acted against Nicaragua in
collective self-defence of El Salvador, Honduras and Costa Rica, were to be
applied to the instant case, Honduras could be deprived of a principal
defence to Nicaragua's claims even before pleadings on the merits of the
case are exchanged.
When the Court denied the requests of Malta and Italy to intervene in other
cases under. Article 62 of the Statute -- where it "shall be for the Court
to decide" on intervention -- the Court nevertheless gave assurances to
Malta and Italy that when it came to adjudicate the merits it would ensure
that their interests would not be prejudiced by their absence. It gave
effect to those assurances. When El Salvador sought to intervene in the
Military and Paramilitary Activities in and against Nicaragua case under
Article 63 of the Statute -- that is, to exercise its statutory "right to
intervene in the proceedings" -- the Court summarily denied the request,
gave El Salvador no such assurances, and rendered a judgment which, on any
view, must be profoundly prejudicial to the interests of El Salvador as it
presented them to the Court in its denied declaration of intervention.
Now, in the instant case, when Honduras complains with apparent
justification of the position in which it finds itself as a result not only
of Nicaragua's litigating tactics but the Court's acceptance of them, what
does the Court offer in response?
A very mixed response. On the one hand, the Court concludes that it cannot
uphold the contention of Honduras that the procedural situation created by
Nicaragua's splitting up of the overall conflict into separate disputes is
contrary to the requirements of good faith and the [p 131] proper
functioning of international justice. On the other hand, the Court holds
that:
"In any event, it is for the Parties to establish the facts in the present
case taking account of the usual rules of evidence, without it being
possible to rely on considerations of res judicata in another case not
involving the same parties (see Article 59 of the Statute)." (Judgment,
para. 54.)
It follows from this latter holding that if, at the stage of the merits, a
Party to the instant case should endeavour to rely on the findings of fact
of the Judgment of 27 June 1986 in Military and Paramilitary Activities in
and against Nicaragua, the Court will not accept such reliance but will
require that Party to establish the facts in the present case taking account
of the usual rules of evidence. Despite the fact that that Judgment passed
upon causes of action which are found in the instant case; and despite the
fact that Honduras is repeatedly specified both in the pleadings of the
Military and Paramilitary Activities in and against Nicaragua case and in
the Court's Judgment, considerations of res judicata cannot apply since that
case was another case, to which the Parties were not the same as the Parties
to this case.
This says no more than what the terms of Article 59 of the Statute require.
Nevertheless, in the circumstances, it is important that the Court says it,
and, if the instant case reaches the stage of the merits, it will be crucial
for the Court to give full effect to Article 59. In the nature of the
situation with which the Parties and the Court are confronted, that will not
be simple. Can the Court, which in its Judgment of 27 June 1986, not only
acquitted Nicaragua of charges of acts of unlawful intervention in the
affairs of its neighbours which were tantamount to armed attack, but also
acquitted Nicaragua of certain acts of unlawful intervention altogether,
consider, without regard to these holdings, the facts of the instant case as
the evidence may show them to be? Can the Court, which in its Judgment of 27
June 1986 considered as established the fact that certain transborder
military incursions into the territory of Honduras are imputable to the
Government of Nicaragua, consider, without regard to that holding, the facts
of the instant case as the evidence may show them to be?
The importance of the Court giving the most rigorous effect in the current
case to the import of Article 59 is,in my view, the greater for an
extraordinary reason. To apply the findings of fact of the Court's Judgment
of 27 June 1986 to the merits of the instant case would be the more
prejudicial because certain of those findings -- critical findings at that
-- do not in fact correspond to the facts. In Judge Oda's restrained phrase
appraising the Court's finding of the facts in Military and Paramilitary
Activities in and against Nicaragua, it is "beyond any doubt that the
picture of the present dispute painted by the Court is far from the
reality". And to apply certain of the Court's conclusions of law in that
case to the merits of the instant case would be no less prejudicial, because
certain of those conclusions were and are in error.
(Signed) Stephen M. SCHWEBEL.
[p 133]
SEPARATE OPINION OF JUDGE SHAHABUDDEEN
Its general interest apart, this case is one of importance to a hitherto
untested branch of the institutional structure of a major region. I agree
with the Judgment of the Court but have some additional views on matters of
approach, analysis and reasoning. The issues involved would also, I think,
admit of more specific treatment and of some account being taken of the
regional literature cited by both sides. They relate to the questions (i)
whether Article XXXI of the Pact of Bogota is an undertaking to file
optional clause declarations; (ii) whether the reservations to Honduras's
optional clause declaration of 1986 apply to its obligations under Article
XXXI; (iii) whether conciliation is a precondition to the right to move the
Court under Article XXXI; (iv) whether the negotiation requirement of
Article II has been satisfied; and (v) whether the Contadora process is a
bar to these proceedings under Article IV. It may be that the Judgment of
the Court can be strengthened on each of these five points.
I. WHETHER ARTICLE XXXI OF THE PACT OF BOGOTA IS AN UNDERTAKING TO FILE
OPTIONAL CLAUSE DECLARATIONS
I commence by stating my approach to two aspects of the Judgment of the
Court as it relates to this important jurisdictional issue. These two
aspects are presented in paragraph 29 of the Judgment, in which the Court
notes that:
"Honduras first draws attention to the fact that Article XXXI begins with
the words, 'In conformity with Article 36, paragraph 2, of the Statute of
the International Court of Justice', and that the wording of the rest of the
Article is almost identical with that of Article 36, paragraph 2."
On this basis Honduras submitted that Article XXXI "obligated the parties to
accept the compulsory jurisdiction of the Court 'in conformity with Article
36, paragraph 2, of the Statute'", and that it would be "in conformity with"
this provision for a party to the Pact to make a declaration from time to
time and to vary or terminate it by making a subsequent declaration.
As to the opening words of Article XXXI, "In conformity with Article 36,
paragraph 2, of the Statute", this phrase, being followed imme-[p 134] y the
words "the High Contracting Parties declare . . .", clearly relates to a
declaration which was thereby being actually made, operating to designate it
as a declaration of the kind visualized by Article 36, paragraph 2, and not
to declarations to be made in future. Hence the remark by Mr. Garcia-Amador
(cited more fully below) that "the Pact itself constitutes an unconditional
declaration of the type foreseen in" Article 36, paragraph 2, of the Statute
of the Court. In the result, the effect of the opening words of Article
XXXI, relied on by Honduras, was exhausted at the, commencement of the Pact.
If the words were intended to relate to an ambulatory,competence to make
future declarations, simpler and less subtle ways of expressing,the
intention should have, been available.
As to the argument that, apart from the opening words referred to above, the
wording of Article XXXI of the Pact is almost identical with that of Article
36, paragraph 2, of the Statute of the Court, it was indeed the contention
of Honduras that Article XXXI was a provision which "merely reproduces, the
terms of Article-36, paragraph 2". Although this view may claim support from
remarks to be occasionally found in the literature ,on the subject, for the
reasons, given above it seems to me that Article XXXI was intended as an
exercise of a faculty created by Article 36, paragraph 2, and was not
conceived of as a mere reproduction of the latter. For, whereas Article 36,
paragraph 2, provides that parties to the Statute "may . . . declare . . .",
in Article XXXI, as has been noticed, parties to the Pact state that, "in
conformity with" Article 36, paragraph 2, they "declare . . ." The idea
(referred to, for example, in Roberto Cordova, "El Tratado Americano de
Soluciones Pacificas -- Pacto de Bogota", Anuario Juridico Interamericano,
1948, pp. 11-12) that Article XXXI is a mere reproduction of Article 36,
paragraph 2, seems traceable to a remark made by Mr. Belaunde of Peru during
the opening stages of the relevant discussions in. Committee III of the
Ninth International Conference of American States, held in Bogota in 1948,
when he said "that Article XVII [XXXI] does no more than transcribe Article
36 of the Statute of the International Court of Justice" (translation by the
Registry). ["[E]l Articulo XVII [XXXI] no hace otra cosa que transcribe el
Articulo 36 del Estatuto de la Corte Internacional de Justicia." (Novena
Conferencia Internacional Americana, Actas y Documentos, Vol. IV; Bogota,
1953, p. 161.)] But, overtaking that remark, the ensuing discussions went on
to recognize, as Mr. Belaunde himself did and as paragraph 32 of the
Judgment of the Court seems to do, that the Article was in fact intended as
an immediate general declaration of acceptance of the compulsory
jurisdiction of the Court and, indeed, as a general declaration which, so
far as parties to the Pact were concerned, was to be free of any
reservations annexed to any separate declarations made or to be made by them
under Article 36, paragraph 2, of the Statute. In effect, it is not the case
that Article XXXI "obligated the parties to accept the jurisdiction of the
Court 'in conformity with Article 36, paragraph 2, of the Statute'": it was
intended as being in itself an acceptance of such jurisdiction. In the
circumstances, there is need for caution in taking at face value the
original remark by Mr. Belaunde that Article XXXI of the Pact was a mere
reproduction of Article 36, paragraph 2, of the Statute.
Speaking of draft Article XXXI, Mr. Soto del Corral of Colombia did say at
the 1948 Conference, "This article in the draft develops the principle
contained in paragraph 1 of Article 36 of the Statute of the Court"
(Translation by the Registry.) ["Este articulo del proyecto desarrolla el
principio contenido en el ordinal 1 del Articulo 36 del Estatuto de la
Corte." (Actas y Documentos, Vol. IV, p. 157.)] Nicaragua, I believe,
intended to place some reliance on that statement for its own interpretation
of Article XXXI as being Inked to Article 36, paragraph 1. In my opinion,
however, reading his interventions as a whole, Mr. Soto del Corral was far
from,wishing to modify the conclusion which I draw from his earlier and main
statement (ibid., pp. 156-157) to the effect that Article XXXI was intended
to be declaration made by each State of acceptance of the compulsory
jurisdiction, of the Court under Article 36, paragraph 2, of its Statute --
and it was on him that the principal responsibility fell to report on the,
draft provision I interpret the above, excerpt from his statement as
signifying that, in serving this collective purpose, Article XXXI would be
operating as a development or extension of the conventional idea
incorporated in Article 36, paragraph 1, in the sense that a treaty would be
made to serve as machinery for effecting a collective declaration under
Article 36, paragraph 2, of the Statute, and not that Article XXXI would in
fact confer, a conventional jurisdiction under Article 36, paragraph 1, or
that the latter would be, applied as it stood. Article 36, paragraph 2, as
is known, represented compromise formula resulting from a Brazilian
initiative, taken during the drafting of the Statute of the Permanent Court.
Latin American jurist were well acquainted with it and with the distinct
tion between it and Article 36, paragraph 1 -- a distinction explicitly
observed in the contrasting wording of Articles XXXI and XXXII. They
presumably meant what they seemed to be saying in Article XXXI.
However, whether the intention was to vest jurisdiction under Article 36,
paragraph 1, or under Article 36, paragraph 2, of the Statute of the Court,
the idea in either case was to make an operationally effective grant on a
uniform basis. On either view, given the jurisdictional discrepancies which
it can obviously produce ratione temporis, ratione personae and ratione
materiae the Honduran contention is inconsistent with the actual intention
of the parties at Bogota.
Some comparisons may be usefully made. In the Novena Conferencia
International Americana (op. cit., pp. 6 ff,), is set out the 1947 "Proyecto
de Sistema Interamericano de Paz". Article XVIII, which visualized reference
[p 136] nternational. Court of Justice, contemplated separate declarations
having to be made under Article 36, paragraph 2, of the Statute of the Court
(see also para 25 of the Report on the draft, Novena Conferencia
Internacional Americana, Actas y Documentos, Vol. IV, p. 21). Alluding to
Article XVII relating to arbitration, Article XVIII stated in part:
"Notwithstanding the provisions of the preceding Article, the parties may,
if they so agree, submit their disputes to the International Court of
Justice, when they have previously accepted the compulsory jurisdiction of
the Court under the terms of Article 36 of its Statute. . ." (translation by
the Resgistry). ["No obstante lo establecido en el articulo anterior, se
reconoce a las partes, si se, pusieren de acuerdo en ello, la facultad de
someter sus controversies a la Corte Internacional de Justicia, cuando
hubieren aceptado con anteriori-dad, la jurisdiction obligatoria de la
misma, en los terminos del Articulo 36 de su Estatuto . . ." (Ibid., p. 9).]
The differences between this provision and Article XXXI of the Pact are
striking.
During the 1985 proceedings of the Inter-American Juridical Committee which
reviewed the adequacy of the Pact, the learned Venezuelan delegate Mr. Luis
Herrera Marcano, demonstrating clear understanding of the existing position,
proposed that Article XXXI of the Pact be amended to read:
"When ratifying the present Treaty or at any time thereafter, each State may
declare that it recognizes, on the basis of reciprocity, with respect to any
other American States . . . etc."
The suggested amendment was not adopted (see the opinion of the Committee --
OEA/Ser.G, CP/doc.1603/85, 3 September 1985, pp. 14-15 -- Annex 23 to the
Nicaraguan Counter-Memorial). That the amendment was proposed and not
accepted is however indicative of the generally received meaning of the
existing provision as not being dependent on the making of separate
declarations.
Some evidence, if it were needed, exists of acceptance within the
international community of the essential distinction in law between
recognizing, and undertaking to recognize, the compulsory jurisdiction of
the Court under the optional clause. Thus, Article 3 of the Protocol for
Pacific Settlement of International Disputes adopted by the General Assembly
of the League of Nations on 2 October 1924 stated in part:
"The Signatory States undertake to recognize as compulsory, ipso facto and
without special agreement, the jurisdiction of the Permanent Court of
International Justice in the cases covered by paragraph 2 of Article 36 of
the Statute of the Court . . ." [p 137]
Likewise, Article V of the Treaty of Friendship and General Relations
between Italy and the Philippines of 9 July 1947 reads:
"[T]he Contracting Parties undertake to recognize as compulsory, ipso facto
and without a special Convention, the jurisdiction of the International
Court of Justice in accordance with Article 36, paragraph 2, of the Statute
of the Court."
Article XXXI of the Pact of Bogota does not use language under which the
signatory States "undertake to recognize . . .". Had this been the wording,
the Honduran argument might have had some foundation.
The foregoing accords with the practice observed by parties to the Pact as
regards the relationship between Article XXXI of the Pact and Article 36,
paragraph 2, of the Statute. In addition to the matters referred to in the
first half of paragraph 40 of the Judgment of the Court, it may be observed
that, aside from El Salvador, which later denounced it, the Pact was
ratified by thirteen States. Five of these, Costa Rica, Brazil, Peru,
Paraguay and Chile did so respectively on 6 May 1949, 16 November 1965, 26
May 1967, 27 July 1967 and 15 April 1974. Costa Rica deposited a declaration
under Article 36, paragraph 2, of the Statute only on 20 February 1973.
Paraguay regarded itself as having no declaration in force after its 1938
termination of the declaration made by it In 1933 in favour of the Permanent
Court. The last Brazilian declaration, which was made on 12 February 1948,
expired five years later. Peru and Chile have never had any declaration in
force at any time since ratifying the Pact. The material presented to the
Court does not suggest that any of these five States was ever criticized by
any other State, or by any qualified commentator, as being in breach of any
undertaking given by them in Article XXXI of the Pact to make such
declarations. If, as seems probable, there was no such criticism -- and the
general question whether any State was ever so criticized was before both
sides -- this would diminish the credibility of any claim that Article XXXI
of the Pact was understood by the parties as such an undertaking.
As observed in paragraph 30 of the Judgment, while considering that Article
XXXI of the Pact was intended to confer compulsory jurisdiction under the
optional clause, Honduras submitted that the Article gave a party an option
to implement that intention in one of three possible ways. I am unable to
see anything in the Article which gave an option as to methods of
implementation. Honduras presented no authority in support of its contention
and did not succeed in reconciling it with the text of Article XXXI of the
Pact or with the actual intention at Bogota or with the evolution of Latin
American interest in the subject of compulsory judicial settlement. In
addition, the contention is not, in my opinion, consistent with the
comparisons and considerations referred to above. [p 138]
II. APPLICABILITY OF THE 1986 HONDURAN RESERVATIONS TO ARTICLE XXXI OF THE
PACT OF BOGOTA
A problem arises as a result of an undetermined question as to the precise
character of the jurisdiction conferred by Article XXXI of the Pact of
Bogota. As the Court has pointed out in paragraph 45 of its Judgment, in the
case of Article XXXII of the Pact, the jurisdiction conferred by that
provision is therein described as "compulsory" even though it is expressed
to be related to Article 36, paragraph 1, of the Statute of the Court There
has been no suggestion that Article XXXII of the Pact confers compulsory
jurisdiction under Article 36, paragraph 2, of the Statute; no more than in
the case of treaties which (possibly for reasons of drafting convenience) in
fact refer to Article 36, paragraph 2, of the Statute or use elements of its
language, but without purporting to be declarations made under it. See, for
example, Article 1 of the Convention between Denmark and Finland for the
Pacific Settlement of Disputes, 1926; Article III of the Treaty between
Brazil and Venezuela for the Pacific Settlement of Disputes, 1940; Article 8
of the Treaty of Brussels, 1948; Article 17 of the Revised General Act for
the Pacific Settlement of International Disputes adopted by the General
Assembly of the United Nations on 28 April 1949; Articles 1, 2 and 3 of the
Convention concerning Judicial Settlement between Greece and Sweden, 1956;
and Article 1 of the European Convention for the Peaceful Settlement of
Disputes, 1957. Treaties of this kind may indeed confer a kind of compulsory
jurisdiction while still falling under Article 36, paragraph 1, of the
Statute of the Court. This is because of the circumstance that, although
reference to "the compulsory jurisdiction" of the Court is usually
understood as a reference to its jurisdiction under Article 36, paragraph 2,
of its Statute, the declaratory procedure of that provision is not the only
one by which the Court may be vested with compulsory jurisdiction in a
generic sense. The conventional procedure of Article 36, paragraphs, of the
Statute may equally be employed to confer on the Court a compulsory
jurisdiction which may be invoked unilaterally by any party to the
convention. The authorities, which need not be cited, show that the greater
part of the Court's compulsory jurisdiction in fact rests on such a basis.
As mentioned below, however, a historically attested current of aspiration
within the region flowed in the direction of vesting the Court with true
compulsory jurisdiction. Though, falling short of that aim, Article 36,
paragraph 2, of the Statute, as a compromise substitute, was traditionally
associated with it. Possibly this explains why, in contrast with instruments
of the kind referred to above and uniquely amongst compromissory clauses in
treaties so far engaging the attention of the Court, Article XXXI of the
Pact was cast in a form which; as has been seen and as paragraph 32 of the
Judgment of the Court seems to recognize, suggests that the parties were in
fact engaged in making a declaration under Article 36, para-[p139]graph 2,
of the Statute of the Court. It is possible (though countervailing arguments
are also conceivable) to think of reasons why their intention could not take
effect within the framework of Article 36, paragraph 2 -- it may, in
particular, encounter difficulties relating to the deposit and notification
requirements. In that event, it may be possible to think of reasons why it
should fall to be construed in law as conferring a conventional jurisdiction
under Article 36, paragraph 1.
The problem which arises is that the Court has concluded that it has
jurisdiction under Article XXXI of the Pact but without specifying whether
such jurisdiction is exercisable under Article 36, paragraph 1, or under
Article 36, paragraph 2, of the Statute. Had a determination been made as to
which of these two heads of jurisdiction was applicable, the question of the
effect, if any, of the 1986 Honduran reservations (assuming these to be
otherwise valid) could have been dealt with exclusively in relation to the
head determined. It is not my intention to suggest how the Court might have
made this determination. However, as none has been made, the question of the
effect, if any, of the Honduran reservations on the obligations of Honduras
under Article XXXI has had to be dealt with by the Court in relation to both
of the two possible heads of jurisdiction on the assumption that Article
XXXI confers jurisdiction under one or the other of them. And I agree with
the conclusion reached. But I also consider that this aspect of the Judgment
leaves room for development.
The position under Article 36, paragraph 1, of the Statute is disposed of
easily enough. Nicaragua's conception of Article XXXI of the Pact as
conferring a conventional jurisdiction on the Court under that provision
would, if sound, support its further position that the jurisdiction so
conferred could not be affected by any reservation of annexed to any
declaration made by Honduras under Article 36, paragraph 2, of the Statute
(see the Nuclear Tests cases (I.C.J. Reports 1974) discussed in Eduardo
Jimenez de Arechaga, "International Law in the Past Third of a Century",
Collected Courses, of the Hague Academy of International Law, Vol.
159(1978-I), p. 155). Since the jurisdiction would be conferred by treaty,
treaty law stricto sensu would apply to prohibit any reservations from being
made except at the time of signature or ratification of the Pact or adhesion
to it.
The position is less straightforward if Article XXXI of the Pact falls to be
treated as a declaration collectively made under Article 36, paragraph 2, of
the Statute. On the question) whether Honduras's 1986 reservations could
limit its obligations under Article XXXI, counsel for Nicaragua did indeed
take the position that for
"Honduras to prevail on that issue, it must show that Article XXXI of the
Pact is essentially identical to a declaration under the optional [p
140]clause. Then and only then would the reservation of 6 June 1986 also
limit its obligations under Article XXXI."
I do not see the way ahead as clearly as that. The attempt by Nicaragua to
place Article XXXI of the Pact under Article 36, paragraph 1, of the Statute
is not, I think, the only mode of insulating the former from such a
reservation. In my view (which, I believe, is consistent with paragraph 33
of the Judgment of the Court), Article XXXI may be equally immune from such
a reservation even if it falls to be treated as a declaration, collectively
made under Article 36, paragraph 2. The matter is one of some difficulty but
may, I think, be approached in the following way.
It is the case that, historically, Article 36, paragraph 2, of the Statute
of the Court was constructed only with unilateral declarations in view.
Whether this is sufficient to operate as a permanent brake on development in
the direction of permitting States to do together what they may do
separately is a question into which I do not myself enter. It is enough for
present purposes to observe that if, indeed, as must be assumed in this
branch of the case, Article XXXI of the Pact does constitute a valid
collective declaration under the optional clause (a possibility not so far
falling to be assessed by the Court), this would represent a materially new
legal phenomenon. The consistency with which the Court and its predecessor
have affirmed the concept of unilaterality in cases of individual
declarations would not be a self-evident justification for visiting the fall
implications of the concept on such a phenomenon. For, if Article 36,
paragraph 2, of the Statute of the Court is permissive of a collective
declaration being made by treaty, it would seem to following that that
provision equally lets in the application of treaty law to the question
whether the jurisdiction conferred by such a declaration can be unilaterally
terminated or varied. In the absence of an appropriate enabling reservation
made to the treaty itself at the time of signature, ratification or
adhesion, a negative answer would seem to suggest itself to that question.
Consequently, Honduras's obligations under Article XXXI of the Pact could
not be terminated or modified by the reservations to its 1986 optional
clause declaration.
What, however, is the position if, though collectively made by treaty, a
declaration is regarded as retaining an indestructibly unilateral character
in so far as each party is concerned? In my view, this should not materially
affect the position. Apart from defining relations inter partes, the treaty
would fall to be read as a statement by each party of the nature and terms
of the declaration so made by it, and of its intention in making it. Where a
State has more than one declaration in force under Article 36, paragraph 2,
of the Statute (a possibility which, I believe, both sides accepted) [p 141]
the operation of one is not automatically affected by changes in the other.
This is because of the "rule of international law that a State cannot
unilaterally release itself from international engagements except in
accordance with their terms" (H. W. Briggs, "Reservations to the Acceptance
of Compulsory Jurisdiction of the International Court of Justice", Collected
Courses of the Hague Academy of International Law, Vol. 93 (1958-I), p.
278), or, as it has been put more specifically, of the rule that
"termination a declaration of acceptance is only permissible within the
limits set by the declaration itself" (J. H. W. Verzijl, "The System of the
Optional Clause", International Relations, Vol. 1, No. 12, October 1959, p.
607). Again, although an optional clause declaration is in some respects
different from the kind of unilateral declaration considered in the Nuclear
Tests (Australia v. France) case (I.C.J. Reports 1974), the observation
therein (p. 267, para. 43), which commended itself to the Court in the
Military and Paramilitary Activities in and against Nicaragua, "Jurisdiction
and Admissibility case (I.C.J. Reports 1984, p. 418, para. 59), may well be
cited as follows:
"When it is the intention of the State making the declaration that it should
become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State being
thenceforth legally required to follow a course of conduct consistent with
the declaration."
It is true that in the case last mentioned, speaking of the United States
declaration of 1946, the Court held that a right to modify or terminate is
"a power which is inherent in any unilateral act of a State" (ibid., p. 419,
para. 61; see also pp. 466-467 per Judge Mosler, and p. 552 per Judge Sir
Robert Jennings). This, it may be thought, Would apply to Article XXXI of
the Pact if, though collectively made, is it viewed as amounting
quintessentially to a unilateral declaration by each party to the Pact of
acceptance of compulsory jurisdiction under the optional clause. But each
case is to be understood within its own factual and legal framework. The
cited dictum, which stands to be qualified by the observation earlier quoted
from the Nuclear Tests (Australia v. France) case, was not addressed to
conditions' and circumstances such as those governing Article XXXI as a
pledge to the creation of a durable regional regime of compulsory judicial
settlement. Even if considered as unilaterally given, that pledge, as
reinforced by good faith, clearly excluded a right of termination or
modification as long as the State concerned continued as a party to the
Pact.
Honduras relied on the case concerning the Arbitral Award Made by the King
of Spain on 23 December 1906 (I.C.J. Reports 1960, p. 192), in con-junction
with the Nicaraguan reservation to the Pact and the compromis of 1957, in
support of a contention that the procedures therein employed [p 142]
evidenced a certain unity of jurisdictional base between Article XXXI of the
Pact and Article 36, paragraph 2, of the Statute such that reservations
properly made by a State to the former automatically applied to a
declaration made by it under the latter, and vice versa. The material before
the Court did not clearly diselose Nicaragua's reason for entering the
reservation, the relevant part of which reads thus:
"The Nicaraguan Delegation, on giving its approval to the American Treaty on
Pacific Settlement (Pact of Bogota) wishes to record expressly that no
provisions contained in the said Treaty may prejudice any position assumed
by the Government of Nicaragua with respect to arbitral decisions the
validity of which it has contested on the basis of the principles of
international law, which clearly permit arbitral decisions to be attacked
when they are adjudged to be mill or invalidated. Consequently, the
signature of the Nicaraguan Delegation to the Treaty in question cannot be
alleged as an acceptance of any arbitral decisions that Nicaragua has
contested and the validity of which is not certain . . ."
On the face of the reservation, it seems that Nicaragua considered that it
had an existing right to challenge the validity of the award but apprehended
that something in the Pact might be construed as an acceptance of the award
by it. The reservation was accordingly directed to preserving Nicaragua's
right to challenge the award simpliciter, as distinguished from limiting or
prescribing the fora in which such a challenge might be brought In
particular, the reservation did not appear to have been directed to the
question whether or not such a challenge might be brought under Article XXXI
of the Pact. Indeed, being interested in challenging the award, it is not
easy to see why Nicaragua should have wished to exclude the case from the
jurisdiction conferred on the Court under Article XXXI of the Pact, if it
would have been otherwise cognizable thereunder. In this latter respect,
however, it seemed arguable that, Nicaragua having challenged the award
since 1912, the question of the validity of the award constituted a
pre-existing dispute which would in any event be excluded from litigation
under Article XXXI of the Pact by reason of the terms of both that Article
and Article II. (Compare Article XXXVIII, and see Galo Leoro F., "La Reforma
del Tratado Americana de Soluciones Pacificas o Pacto de Bogota", Anuario
Juridico Americano, 1981, pp. 48 ff.; Opinion of the Inter-American
Juridical Committee on the American Treaty on Pacific Settlement (Pact of
Bogota), OEA/Ser.G, CP/doc, 1603/85, 3 September 1985, pp. 8-9, and
"Analysis of the American Treaty on Pacific Settlement . . . ", by the
Rapporteur of the Committee, contained in this document, pp. 49-50 -- Annex
23 to the Nicaraguan Counter-Memorial; and the case concerning the Arbitral
Award Made by the King of Spain on 23 December 1906 (I.C.J. Reports 1960, p.
203).) It followed that, if the Nicaraguan reservation itself did not need
to and did not in fact have an independent exclusionary effect in relation
to Article XXXI, no question [p 143] could arise of the reservation
automatically operating to exclude the case from Nicaragua's declaration
under Article 36, paragraph 2, of the Statute of the Court, even supposing
the correctness of the Honduran thesis of a common jurisdictional base.
Argument in favour of a different interpretation of the purpose of the
reservation may be made on the basis of clause 6 of the 1957 compromis which
stated that in
"accepting . . . the pertinent application of the Pact of Bogota to the case
here considered, the High Contracting Party FN1 that made a reservation to
the aforesaid international agreement declares that the aforesaid,
reservation shall not take effect".
------------------------------------------------------------------------------------------------------------
FN1
The Spanish text likewise spoke of "la Alta Parte Contractante" but the
French translation in the published pleadings reads, "les Hautes parties
contractantes declarent que toute reserve qu'elles auraient faite audit
pacte ne produira aucun effet". See and compare the case concerning the
Arbitral Award Made by the King of Spain on 23 December 1906, I.C.J.
Pleadings, Vol. 1, pp. 32, 207, 209, and Annex 1 to the original Nicaraguan
Counter Memorial in that case, p. 14.
------------------------------------------------------------------------------------------------------------
A possible response to such an argument is that the first part of the clause
(which did not refer to the reservation) was intended to reflect a
contractual extension of the Pact, as between the two parties, to a case
which, considered as relating to a pre-existing dispute, would otherwise
have been excluded by the Pact itself from judicial settlement under it,
while the second part (which did refer to the reservation and should
therefore be construed reactively to it) would have operated to enable
Honduras to argue, if it wished and thought it could, that the Pact did
constitute acceptance by Nicaragua of the award. On this reading, the
compromis did not necessarily imply that the reservation had been intended
to exclude the case from Article XXXI of the Pact. It is nevertheless proper
to recognize that the interpretation of the compromis on this point is a
matter of some difficulty.
However, even if the above interpretation of the reservation is wrong with
the consequence that the reservation should be viewed as intended to exclude
the particular case from Article XXXI of the Pact, the evidence does not
satisfactorily establish that a reservation made by a State to Article XXXI
of the Pact was regarded as automatically applying to a declaration made by
it under Article 36, paragraph 2, of the Statute or that it was the purpose
of the compromis to remove any such automatic effect of the Nicaraguan
reservation from the declaration made by Nicaragua under Article 36,
paragraph 2. Relying on supporting material presented by him in the Military
and Paramilitary Activities in and against Nicaragua, Jurisdiction and
Admissibility case (I.C.J. Reports 1984), counsel for Nicaragua contended
that the compromis was due to a belief by Honduras
"that if it made an application under the optional clause declarations [p
144] it would be putting in issue the validity of the Arbitral Award, which
it did not want to do because it regarded the Award as unquestionably
valid",
a contention to which Honduras does not appear to have made any, or any
substantial, response. In all the circumstances, even if the Nicaraguan
reservation was intended to exclude jurisdiction under Article XXXI of the
Pact, I cannot draw from the 1957 compromis any reliable inference of the
particular kind proposed by Honduras.
As remarked above and as is noticed in paragraphs 37 and 38 of the Judgment
of the Court, it is clear that the 1948 Conference concluded by taking the
view that, as among members of the Pact, Article XXXI imposed an obligation
which, in the absence of an appropriate reservation to the Pact itself,
would not be subject to any reservations annexed to any separate
declarations made or to be made under Article 36, paragraph 2 (see the
interventions of Mr. Soto del Corral, Mr. Enriquez and Mr. Belaunde in
Novena Conferencia International Americana, Vol. IV, pp. 161-167 and
171-172). It offends logic, strains credulity and conflicts with the travaux
preparatoires of the 1948 Conference (used with due caution) to suppose that
reservations attached to any of the separate declarations later made by
Honduras under Article 36, paragraph 2, of the Statute could affect the
obligations assumed by it under Article XXXI of the Pact.
III. APPLICABILITY OF CONCILIATION TO ARTICLE XXXI OF THE PACT OF BOGOTA
I agree with the Judgment of the Court that conciliation is not a
precondition to the right to litigate under Article XXXI of the Pact. I
agree in particular that Articles XXXI and XXXII separately and autonomously
confer jurisdiction on the Court to determine disputes. I wish, however, to
explain my approach to three aspects. The first concerns the substantive
relationship between the two Articles. The second concerns the textual
relationship between them. And the third concerns the views of the
publicists on the relationship.
As to the first aspect, in paragraph 47 of its Judgment the Court holds that
it is "not pertinent . . . what interpretation is given to Article XXXII . .
. as regards the nature and the subject-matter of the disputes to which that
text applies". It seems to me, however, that, if that approach is relaxed,
the way will be made clear for further analysis confirmatory of the decision
reached.
The Inter-American Juridical Committee, which prepared the 1947 draft, was
itself aware of contemporary debate on the subject of justiciability of
disputes, its report reading:
"The Committee realizes that there is a respectable body of legal opinion
which considers that no distinction can be made between [p 145] disputes
which are juridical in character and those which are not. It did not,
however, consider it necessary to opt for one or the other in this respect,
since the draft envisages arbitration for all disputes." (Translation by the
Registry.)["El Comite se da cuenta de la existencia de una respetable
corriente doctrinaria, en el sentido de que no puede distinguirse entre las
controversias de caracter juridico y las que no lo son. Pero no se ha
considerado necesario tomar partido a este respecto, ya que el proyecto
contempla el arbitraje para todas las controversias." (Novena Conferencia
International Americana, Actas y Documentos, Vol. IV, p. 21, para. 28).]
In addition to the explanation given by the Committee, the judicial
settlement provisions of its draft, besides not being of a compulsory
character, did not involve the problems of categorization of disputes later
precipitated by the contrasting language of Articles XXXI and XXXII of the
1948 Pact Speaking of Article XXXII, Mr. Eduardo Jimenez de Arechaga
("Tentativas de Reforma del Pacto de Bogota", Anuario Juridico
Interamericano, 1986, pp. 5-6), considered that purely political disputes
were not justiciable but nevertheless seemed to accept that "by means of
this provision it becomes possible to submit to the Court questions which
are purely political, in which one party asserts a concern and not a right"
(translation by the Registry), ["se procure, mediante este precepto, someter
a la Corte cuestiones puramente politicas en que una parte alegue un interes
y no un derecho".] Other publicists support this latter view as
corresponding to the actual intention of the framers of the Pact. If would
also seem consistent with the circumstance that Article XXXII follows up the
conciliation procedures of Articles XV to XXX which extend to all disputes.
This view of the actually intended scope of Article XXXII may assist in
appraising the relationship between that Article and Article XXXI, the
latter being expressly limited to juridical disputes.
However, even if it is not necessary to determine whether non-legal disputes
were intended to be comprehended by Article XXXII, the analysis is
distinctly aided by considering whether legal disputes are covered. And it
would seem to me that they are.
The position defined in paragraph 52 of the Judgment of the Court is to the
effect, as I understand it, that the Court is only concerned with cases
involving a "legal dispute, in the sense of a dispute capable of being
settled by the application of principles and rules of international law."
This seems to accord with recent thinking as expressed, for example, in
Eduardo Jimenez de Arechaga (loc, cit., p. 6); Galo Leoro F., "La Reforma
del Tratado Americano de Soluciones Pactficas o Pacto de Bogota" (loc. cit.,
pp. 58-59); Sir Robert Jennings, "International Force and the International
Court of Justice" (in Antonio Cassese (ed.), The Current Legal Regulation of
the Use of Force, 1986, pp. 326-327); and Hermann Mos-[p 146]ler, "Political
and Justiciable Legal Disputes: Revival of an Old Controversy?" (in Bin
Cheng and E. D. Brown (eds.), Contemporary Problems of International Law:
Essays in Honour of Georg Schwarzenberger on his Eightieth Birthday, 1986,
p. 224). (Cf. Andre Beirlaen, "La distinction entre les differends
juridiques et les differends politiques dans la pratique des organisations
internationales", Belgian Review of International Law, Vol. XI, 1975-I, pp.
405 ff.) Coupling the position so taken by the Court with the difficulty of
imagining a legal dispute which is not comprehended by the optional clause
categories adopted in Article XXXI (see S. Rosenne, The Law and Practice of
the International Court of Justice, 1965, Vol. 1, p. 376), it is not easy to
see what purpose is served in relation to the Court by Article XXXII unless
this does in fact embrace legal disputes as enumerated in Article XXXI.
Whatever else Article XXXII may in fact have been intended by its framers to
cover, there seems to be a clear balance of opinion amongst the commentators
that it does apply to such disputes.
However, if Article XXXII does embrace legal disputes, then, unless Article
XXXI was intended to give a right to sue without a need for complying with
the preconditions referred to in the former, it is difficult to see the need
for Article XXXI, since Article XXXII would cover the same disputes subject
to compliance with the same preconditions. Apart from colliding with the
cautionary principles of treaty interpretation relating to a reading
productive of redundancy (see Charles Rousseau, Droit international public,
1970, Vol. 1, pp. 271-272), so hollow a consequence would be surprising in
the light of the general object and purpose of the Pact, which, as indicated
in paragraph 46 of the Judgment of the Court, was intended to enhance the
level of regional commitment to compulsory judicial settlement of
inter-American disputes. True, Article XXXI appears to have been the result
of on-the-spot drafting and decision-making at Bogota; but, viewed over a
larger time-scale, it seems to have been the natural product of a longer
process of gestation. Under the General Treaty of Inter-American
Arbitration, 1929, participating States committed themselves to accept
compulsory arbitration of disputes relating to the four categories of
matters specified in the second paragraph of Article 36 of the Statute of
the Permanent Court (corresponding to Article 36, paragraph 2, of the
Statute of the present Court). Thereafter, a long quest by some American
States after true compulsory judicial settlement failed to find a place
within the structure of the present Court when it was established in 1946,
as it had failed when the Permanent Court was earlier established. On the
disappointment of those more general hopes, it might have been thought that
an attempt would sooner or later be made to provide for some proximate form
of compulsory judicial settlement as among Latin American States (see J. M.
Yepes, "La Conference panamericaine de Bogota et le droit international
americain", Revue generale de droit international public, 1949, Vol. 53, p.
65). For the reasons mentioned earlier, this they accordingly proceeded to
do, however abruptly and unheralded, in Article XXXI of the Pact, by way of
a collective declaration of accept-[p 147]ance of the compulsory
jurisdiction of the Court under Article 36, paragraph 2, of the Statute of
the Court. In the absence of clear language compelling to the contrary, it
would not be right to construe Article XXXI as representing a level of
commitment to the idea of compulsory judicial settlement so markedly below
that derivable from the development of regional aspirations on the subject
as to be practically illusory, if not regressive when compared with the
level of obligations already undertaken by many American States in the
ordinary way under the optional clause.
As to the second aspect, there is no textual or logical connection between
Articles XXXI and XXXII. Article III provides for freedom of choice of means
of settlement, but, by a seemingly partial exception to that general
principle, Articles XXXII to XXXV prescribe a certain progression of steps
where conciliation (which can apply to any dispute) has been unsuccessfully
tried. Those subsequent steps involve voluntary arbitration or, where there
has been failure to agree on arbitration, settlement by the Court at the
instance of either party (each being entitled to apply), and, finally, where
the Court declines jurisdiction (save in certain cases) obligatory reference
by the parties to arbitration. In this sense conciliation is the key to what
has been called the "automatic machinery" of the Pact (see William Sanders,
"The Organization of American States, A Summary of the Conclusions of the
Ninth International Conference of American States", International
Conciliation, 1948, p. 404; and Raul Luis Cardon, La Solution Pacifica de
Controversies Internationales en el Sistema Americano, Buenos Aires, 1954,
p. 75).
It is within this framework that may be sought an explanation of an apparent
hiatus existing between Articles XXXI and XXXII in the sense that, whereas
the former is silent on the subject of conciliation, the ensuing provisions
of the latter begin somewhat disjointedly with the words, "When the
conciliation procedure previously established in the present Treaty or by
agreement of the parties does not lead to a solution. . .". The linkage
backwards established by these words is with Articles XV to XXX, which deal
with conciliation, and not with Article XXXI, which does not. The connective
strand of the phrase seems to be simply carrying forward the reading of
those earlier provisions, no reference to Article XXXI being germane to the
narrative thus continued. Though, in the result, a party does stand
precluded from litigating under Article XXXII unless conciliation has been
unsuccessfully tried and there has been failure to agree on arbitration, the
concern in that Article is not with the institution of those steps as
preconditions to the right to litigate, but rather with the conferment of a
right to litigate where those steps have in fact been taken. Article XXXI
does not have any place in that self-contained sequence. Nor can it; for
once it is accepted that the object of Article XXXII was not to prescribe a
procedure for the exercise of a juris-[p 148]diction but rather to confer a
jurisdiction where certain procedures otherwise prescribed have in fact been
followed, it becomes impossible to sustain the Honduran contention that
Article XXXII was intended to prescribe a procedure for the exercise of the
jurisdiction conferred by Article XXXI.
Latin American jurists, it may be noted, had had some experience in dealing
with conciliation in relation to other forms of settlement. Under Article I
of the General Treaty of Inter-American Arbitration, 1929, conciliation was
laid down as an optional preliminary to, and not a mandatory precondition
of, arbitration of legal disputes corresponding to the categories prescribed
by the optional clause. By contrast, under Article 3 of the Treaty between
Brazil and Venezuela for the Pacific Settlement of Disputes, 1940,
conciliation was explicitly established as a precondition to settlement of
such disputes by the International Court of Justice. With such precedents
before them, clearer language might have been expected had it been the
intention of the framers of the Pact of Bogota to prescribe conciliation as
a precondition to the exercise,of the right to move the Court under Article
XXXI.
As to the third aspect, the commentators are divided on the subject. In view
of their association with the system in its early years, it would be right
to give weight to the views of Mr. Alberto Lleras Camargo and Mr. F. V.
Garcia-Amador. The former, though reporting somewhat summarily on the
particular point, considered that conciliation was a precondition to
recourse to the Court under both Articles XXXI and XXXII of the Pact (see
Alberto Lleras, "Report of the Ninth International Conference of American
States", Annals of the Organization of American States, 1949, Vol. 1, No. 1,
pp. 48-49). Both sides agreed that Mr. Garcia-Amador also subscribed to that
view; but his position does not seem to me to be altogether clear. A
contrast suggests itself between The Inter-American System, Its Development
and Strengthening (Inter-American Institute of International Legal Studies,
1966, pp. 78-79)(thought to have been prepared under his general-academic
supervision) and his personal views as expressed in Heidelberg in 1972 (see,
by him, "To which Extent and for which Subject-Matters is it Advisable to
Create and Develop Special Judicial Bodies with a Jurisdiction Limited to
Certain Regions and to Certain Subject-Matters?", in Judicial Settlement of
International Disputes, Max-Planck Institute for Comparative Public Law and
International Law, 1974, p. 92). Referring to Article XXXI of the Pact, both
works state that "the Pact itself constitutes an unconditional declaration
of the type foreseen in" Article 36, paragraph 2, of the Statute of the
Court. This is then followed in the 1966 work by a paragraph stressed by
Honduras and reading:
"The foregoing notwithstanding, the compulsory nature of the judicial
settlement is subject, to be precise, to the fact that the Con-[p
149]ciliation Procedure established in the Pact or by the decision of the
parties has not led to a solution and, in addition, that the said parties
have not agreed on an Arbitral Procedure. Only in these circumstances may
one of the parties exercise its right to have recourse to the Court and the
other, therefore, he subject to its jurisdiction (Article XXXII)."
The corresponding paragraph in the 1972 statement reads, more guardedly, it
seems to me, as follows:
"However, two conditions are to be met before a party to the dispute is
entitled to have recourse to the ICJ in the manner prescribed in Art. 40 of
its Statute and before the Court has jurisdiction in accordance with Art. 36
(1) of the said Statute: namely, when the conciliation procedure previously
established in the Pact or by agreement of the parties does not lead to a
solution, and the said parties have not agreed upon an arbitral procedure."
The internal structure of each of the two paragraphs and their consequential
relationship to the preceding common remark concerning Article XXXI of the
Pact seem somewhat different. The later paragraph appears in substance to be
addressed only to proceedings instituted (in the manner prescribed in
Article 40 of the Statute) under Article 36, paragraph 1, of the Statute and
presumably, therefore, in pursuance of Article XXXII of the Pact. The
passages in question are not, of course, to be construed as if they were
provisions of a Statute; and too fine a point need not be put on slight
differences. Yet, assuming that Mr. Garcia-Amador was a party to the 1966
statement, it is possible, I believe, to discern some movement in this
important area on the part of a thoughtful mind.
Whatever may be the position of Mr. Garcia-Amador (and I recognize that it
is debatable), the view taken by Mr, Alberto. Lleras does appear to be held
by Charles G. Fenwick, The Organization of American States, the
later-American Regional System (1963, p. 188); Hans van Mangoldt,
"Arbitration and Conciliation" (in Judicial Settlement of International
Disputes, Max-Planck Institute for Comparative Public Law and International
Law, 1974, p. 466); and R. P. Anand, International Courts and Contemporary
Conflicts (1974, p. 301). But it does not, in my opinion, prevail over what
I consider to be the ordinary and natural meaning of the scheme of the Pact
to be ascertained in accordance with the leading principle enunciated in
Article 3-1 of the Vienna Convention on the Law of Treaties, 1969, or over
the views of other commentators who speak differently.
One of the earliest among these is William Sanders, an alternate delegate of
the United States at the Bogota Conference. His authority was in fact put
forward by Honduras in support of the opposite view advanced by it, the
particular passage cited reading as follows:[p 150]
"Consultations among the members of the Organization would have no place in
this scheme since in theory no dispute could escape settlement, either by
acceptance by the parties of the results of good offices, mediation
investigation or conciliation, or failing such acceptance, by a binding
award reached through judicial or arbitral settlement of all disputes,
whether legal or non-legal in character." (Sanders, loc. cit., p. 401.)
Honduras submitted that by this passage Mr. Sanders "indicates, by
comparison with" the 1945 draft, "the system which was finally to be
definitively adopted". However, the judicial settlement provisions of the
1947 draft, to which the passage related, were not compulsory in character
and, more particularly, did not correspond in their essential features to
Articles XXXI and XXXII of the 1948 Pact. With regard to these Articles, a
different position is suggested by a close reading of Sanders (pp. 403-404).
And this different position is, I think, sustained by others, including Raul
Luis Cardon (op. cit., pp. 75-76); F. G. Fernandez-Shaw, La Organization de
los Estados Americanos (OEA) -- Una Nueva Vision de America (Madrid, 1959,
pp. 369, 377 and 378); J. M. Ruda, "Relaciones de la OEA y la UN en cuanto
al Mantenimiento de la Paz y la Seguridad Internationales" (Revista Juridica
de Buenos Aires, 1961, Vol. 1, Patt II, pp. 47-48); J. J. Caicedo Castilla,
El Derecho International en el Sistema Interamericano (Madrid, 1970, p. 374,
para. 417); Alberto Herrarte, "Solution Pacifica de las Controversias en el
Sistema Interamericano" (in Sexto Curso de Derecho International Organizado
por el Comite Juridico Interamericano, July-August 1979, Washington, 1980,
pp. 220 and 225); Felix Lavina and Horacio Baldomir, Instrumentos Juridicos
para el Mantenimiento de la Paz en America (Montevideo, 1979, pp. 29-30);
Galo Leoro R, "La Reforma del Tratado" (loc. cit., pp. 46 and 53); idem, "El
Proyecto de Reformas del Comite Juridico Interamericano al Tratado Americano
de Solueiones Pacificas (Pacto de Bogota)" (Anuario Juridico Interamericano,
1986, p. 22); and, although the reading' is not free from difficulty, P. J.
I. M. de Waart, The Element of Negotiation in the Pacific Settlement of
Disputes between States (The Hague, 1973, pp. 95-96).
Without going through these views seriatim or suggesting that they are all
equally considered or clear on the point, I have gained the impression that
their general tenor is reconcilable with the position taken by the
inter-American Juridical Committee on the American Treaty on Pacific
Settlement, which, in my understanding, made it reasonably clear at page 6
of its 1985 Opinion that the right to move the Court under Article XXXI of
the Pact is not subject to the preconditions referred to in Article XXXII,
the view of the Rapporteur, Dr. Galo Leoro F., being to the same effect (see
"Analysis of the American Treaty on Pacific Settlement. . .", loc. cit., pp.
48, 56-57 and 61 -- Annex 23 to the Nicaraguan Counter-Memorial). I share
this opinion. [p 151]
IV. WHETHER THE NEGOTIATION REQUIREMENT OF ARTICLE II OF THE PACT OF BOGOTA
HAS BEEN SATISFIED
I agree with the view expressed in paragraphs 75 and 92 of the Judgment of
the Court to the effect that, when the Nicaraguan Application was filed,
there were no negotiations in being or in prospect which could ground an
opinion by Honduras in good faith that the controversy between it and
Nicaragua could be settled by negotiations. I, however, consider that that
view is strengthened by giving some prominence to the circumstance that, as
it seems to me, Honduras effectively refused to embark on direct bilateral
negotiations.
On the record, it is clear that Nicaragua did endeavour to hold direct
bilateral negotiations with Honduras but that its efforts to do so failed
because (as appears more particularly from the substance of the Honduran
Foreign Minister's Note of 23 April 1982 referred to in paragraph 68 of the
Judgment) Honduras for all practical purposes insisted on a regional
approach. Where States in fact negotiate with each other within a
multilateral framework (and they can only do so with the consent of each
side) the negotiations may well be regarded as direct bilateral negotiations
even though they take place within a multilateral framework. But there is no
principle which entitles a party to claim that it is offering to enter into
"direct bilateral negotiations through the usual diplomatic channels" where
it is in fact insisting on a multilateral framework as the only acceptable
basis for negotiating. Though an admissible method, bilateral negotiations
conducted within such a framework can scarcely constitute the norm of
"direct negotiations through the usual diplomatic channels". I do not accept
that where, for example, a party is subject to a requirement to enter into
such negotiations, it is entitled unilaterally to impose a multilateral
framework as an indispensable condition for complying with the requirement.
Drawing on this approach, it seems to me that, in the circumstances referred
to, Honduras effectively refused to enter into such negotiations and so
could not have been of the opinion that the controversy between itself and
Nicaragua could be settled in that manner.
Unable to rest on any negotiations occurring prior to the commencement of
the Contadora process, Honduras was obliged to rely on such negotiations as
were conducted within the Contadora process itself as constituting both
negotiations within the meaning of the preliminary requirement relating to
negotiations and as part of a special procedure adopted consequent on the
Parties being of opinion that a settlement could not be produced by "direct
negotiations through the usual diplomatic channels". In the light of the
procedural sequence prescribed by Article II of the Pact as referred to
below, I find no answer to the observation made by counsel for Nicaragua
when, speaking of the Contadora process in this connection, he said, "Il ne
peut pas a la fois etre et preceder!" [p 152]
I would add that a certain internal contradiction in the position of
Honduras excludes the possibility of an opinion being held by it to the
effect that the controversy which is the subject-matter of the Nicaraguan
Application could foe settled by negotiations. Under Article II of the Pact
the consent of both parties is required for the adoption of a procedure as a
special procedure. But, under the scheme of that provision, the question of
both parties agreeing to treat a procedure as a special procedure can only
arise where the requirement relating to the opinion of the parties as to the
incapacity of negotiations to produce a settlement has been satisfied. Since
Honduras insists that the concurring opinions of both parties were necessary
to satisfy that requirement, it could not, on its own presentation, deny a
concurrence of opinions in respect of that requirement while needing to
affirm a concurrence of opinions in respect of the Contadora process.
V. WHETHER THE CONTADORA PROCESS IS A BAR TO THESE PROCEEDINGS
On this part of the case I propose, first, to notice what may be regarded as
a preliminary question relating to Article IV of the Pact, and, second, to
consider another approach to the decision reached.
As to the first point, it was the argument of Nicaragua that the
subject-matter of the Contadora process did not embrace the subject-matter
of the case at bar. If the argument is sound, it suffices to dispose of this
branch of the case in favour of Nicaragua, even making every other
assumption in favour of Honduras, including,an assumption that the Contadora
process continued without material change after the filing of the Nicaraguan
Application. This is because the principle of Article TV naturally
presupposes that both of the procedures involved relate to the same
"controversy". Indeed, that presupposition lies at the threshold of any
attempt to invoke the principle. FN1 Not surprisingly, the Nicaraguan
argument was strenuously opposed by Honduras, chiefly on the ground that
both the Contadora process and the reliefs sought in the case were directed
to achieving the common purpose of bringing about a cessation of the
transborder activities alleged by Nicaragua. The difficult issue presented
is whether any such common physical result is a sufficient answer to what I
understand to be Nicaragua's contention, that is to say, that what it is
essentially seeking from the Court is an authoritative declaration on the
question whether Honduras has violated its international legal obligations
[p 153] to Nicaragua, and that nothing corresponding to any such declaration
is being sought on any basis or at any level through the Contadora process
which, though it might prevent similar questions from arising in future, was
not designed to determine that particular question.
---------------------------------------------------------------------------------------------------------------------
FN1
Referred to in the Nicaraguan arguments, as the una via electa principle,
and in Fernandez-Shaw (op. cit., p. 370), as the exceptio de litispendentia.
For the distinction, see Dan Ciobanu, "Litispendence between the
International Court of Justice and the Political Organs of the United
Nations", in Leo Gross (ed.), The Future of the International Court of
Justice, 1976, Vol. 1, pp. 209 ff.
---------------------------------------------------------------------------------------------------------------------
A problem for Nicaragua would seem to be presented by the Nuclear Tests
(Australia v. France) case, in which it was, held that the Australian
request for a declaration that "the carrying out of further atmospheric
nuclear weapon tests [by France] in the South Pacific Ocean [was] not
consistent with, applicable rules of international law" (I.C.J. Reports
1974, p. 260, para. 25) was not a prayer for separate relief but merely a
statement of reason in support of the other reliefs sought, and could not
therefore be granted once it was judged no longer possible to grant the
latter. But, without entering into the discussion of that interesting
decision, there could be an argument as to whether it is distinguishable,
regard being had to the fact that, unlike the position as found by the Court
in that case, in the instant case there is a prayer for reparation, the
asserted transgressions are not non-recurrent but are allegedly continuing,
and there is no undertaking by Honduras to discontinue them (see the
observations of Judge Sir Gerald Fitzmaurice in the Northern Cameroons case
(I.C.J. Reports 1963, p. 98, note 2), and those of Judge Morelli (ibid., p.
141), in reference to the Corfu Channel case (I.C.J. Reports 1949)). Such a
distinction might take strength from the authorities cited and the remarks
made by the joint minority in the Nuclear Tests case to the effect that
"to decide and declare that certain conduct of a State is or is not
consistent with international law is of the essence of international
adjudication, the heart of the Court's judicial function" (I.C.J. Reports
1974, p. 314).
Whatever was the position in the Nuclear Tests case, it would seem that
questions are open in this case as to whether it could be held that the
Nicaraguan "request for a declaration is the essential submission" or the
"basic submission", to adopt the description given by the joint minority of
the Australian request for a declaration (I.C.J. Reports 1974, pp. 313 and
315 respectively); if so, whether the issues raised by such a declaration
fell for determination within the Contadora process; and, if not, whether
there was identity of subject-matter as between that process and the instant
case. The Judgment of the Court leaves these issues unresolved, paragraph 93
stating that "it is unnecessary for the Court to determine whether the
Contadora process . . . had the same object as that now in progress before
the Court". However, although the Court has not determined that question,
which therefore remains open, its Judgment logically assumes at answer in
favour of Honduras. Such an assumption could, of course, be made for the
purpose of determining the particular point on [p 154] which the Court's
Judgment turned. I would note, however, that the assumption so made is
juridically one of some magnitude relating to a major preliminary issue in
deep contention between the Parties.
As to the second point, whatever may have led to the concordance of views of
the Parties on the matter, they both took the position that the Contadora
process continued (as in a sense it did)even after the filing of the
Nicaraguan Application (see paragraph 90 of the Judgment of the Court). More
particularly, however, and contrary to the finding of the Court (with which
I agree), neither side made any recognition of any substantial difference
between the process as it existed before and as it existed after that event.
Yet, in my opinion, even if it is thought that the agreed views of the
Parties should be deferred to, and even if (which is far from clear) the
subject-matter of the Contadora process embraced that of the Nicaraguan
Application, the result reached by the Court stands undisturbed.
This is so for the reason that, even on the assumptions made, the question
remains whether the Contadora process is a procedure of a kind which serves
to ground the prohibition in Article IV against simultaneous recourse to
another procedure. Honduras sought to answer this in the affirmative by
contending that the process is a "special procedure" within the meaning of
Article II. However, the prohibition in Article IV hinges on the adoption of
"any pacific procedure". As is made clearer in, the Spanish text, which
speaks of, "uno de los procedimientos pacificos" (in the Portuguese text "um
dos processos pacificos", and in the French text "I'une des procedures
pacifiques"), the referencene in the English text of Article IV to "any
pacific procedure" relates to the referenced Article III to "the pacific
procedures established in the present Treaty". This in turn relates to the
reference in Article II to "the procedure established in the present
Treaty". But Article II draws a distinction between "the procedures
established in the present Treaty" and "such special procedures as, in their
opinion, will permit them to arrive at a solution", with the result that the
prohibition in Article IV hinges not on "special procedures" but only on
"pacific procedures" in the sense of "procedures established in the present
Treaty". Hence, if, as argued by Honduras, the Contadora process is a
special procedure, it does not serve to ground the prohibition.
It is, in my opinion, equally clear that the Contadora process, though
generically a pacific procedure, is not "pacific procedure" within the
meaning of Article IV. The process appears to comprehend a protean amalgam,
of elements of negotiation, good offices, mediation and possibly
conciliation, the proportionate weight of each element varying from phase to
phase. Though referred to in the Pact, negotiation is not a procedure
established by it. The others are so established, but the prescribed steps
relating to mediation and conciliation -- no particular ones were prescribed
in relation to good offices -- were not observed and [p 155] were not
intended to be observed, with the suggested inference that the procedures
followed were not those established by the Pact. Further, as distinguished
from what may be possible in the case of a special procedure, no pacific
procedure established by the Pact consists of a combination of others or,
permits of their simultaneous use; the principle of Article IV, appealed to
by Honduras, is itself against that. The Contadora process is generally and
rightly regarded as unique. Neither the process as a whole nor any procedure
forming part of it can fairly be seen as answering to the description of any
pacific procedure established by the Pact.
In so far as concerns Esquipulas II, this, to the extent that it is accepted
as an unfolding of the Contadora process, is covered by the foregoing. If it
represents a materially new process, it is not relevant to the question of
admissibility since it came into being after the case was brought. However,
the matter may bear reference to a statement by the Honduran Foreign
Minister published in La Tribuna of 3 June 1988, in which he asserted "the
incompatibility between the Guatemala Procedure' and judicial recourse" and
said:
"Once the issue of the Court's jurisdiction is decided, Honduras will be
free of undue pressure from Nicaragua. It will be able to continue
contributing to the normalization of Central America by complying with the
commitments undertaken in good faith in the special Esquipulas II
procedure."
The implication that Honduras would not be complying with the commitments
undertaken by it in the special Esquipulas II procedure whilst this case was
pending led the Agent for Nicaragua to submit to the Court that
"on the other side of the Atlantic Honduras tells its Latin American
counterparts that it cannot comply with Esquipulas because of these
proceedings. On the other hand, on this sides of the Atlantic and before the
Court, Honduras says these proceedings should not go ahead because there is
another process that is ongoing and more appropriate, something which stops
the Court from continuing this case."
It seems difficult to fault that statement to the extent that it is based on
the proposition that Honduras cannot have it both ways.
The relative lack of utilization of the Pact combines with the recourse
which has instead been made over the years to other inter-American
procedures to give some significance to the fact that, prior to the
institution of the case, neither of the two Parties, nor, indeed, any
interested third party, had ever suggested that the Contadora process was a
procedure within the framework of the Pact. Accepting that a specific
commitment to that view was not legally necessary, the silence is still
noteworthy. Had a [p 156] statement in the sense referred to been made, El
Salvador, a participant in the Contadora process but not a member of the
Pact, might have offered & comment. I agree with the Court that, valuable as
it is, the Contadora process is not a bar to these proceedings.
(Signed) Mohamed SHAHABUDDEEN. |
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