III. | The International Court of Justice |
2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
2.2. | Conditions for a Decision on the Merits |
2.2.4. | Admissibility |
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Border and Transborder Armed Actions
Nicaragua/Honduras),
Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1988, p. 69
[pp. 91-92] 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.
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.
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.
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, 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).
[p. 92] 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.
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.
[p. 95] 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.
[p. 99] 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 Bogotá.
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.
The Court therefore considers that the provisions of Article II of the Pact
of Bogotá relied on by Honduras do not constitute a bar to the
admissibility of Nicaragua's Application.
[pp. 99-100] 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 Bogotá, 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."
Article IV of the Pact of Bogotá, 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."
It is common ground between the Parties that the present proceedings before
the Court are a "pacific procedure" as contemplated by the Pact of
Bogotá, 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.
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
July 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".
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.
[pp. 104-105] From this account it is clear that the Contadora
process was at a standstill 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.
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.
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 IV of the Pact of
Bogotá, 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 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.
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 the 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 overlooked 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.
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 Bogotá, 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.
[pp. 126-127 S.O. Schwebel] The admissibility of Nicaragua's
Application raises more substantial doubts, by reason of the operation of
Articles II and IV of the Pact of Bogotá. Believing as I do that
jurisdiction in this case can only be founded on the Pact of Bogotá, 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 substance 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 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.
[pp. 130-131 S.O. Schwebel] 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 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.