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World Court Digest



III. The International Court of Justice
2. THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE
2.2. Conditions for a Decision on the Merits
2.2.3.Jurisdiction in Case of Continuing Negotiations between the Parties

¤ Border and Transborder Armed Actions
Nicaragua/Honduras),
Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1988, p. 69

[pp. 94-95] Nicaragua has argued, first, that it does not necessarily follow from the text of Article II 1 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.
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.
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.
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.
For the purpose of determining the application in this case of Article 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.

[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. 105-106] The Court has also to deal with the contention of Honduras that Nicaragua is precluded not only by Article IV of the Pact of Bogotá 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 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.

[pp. 154-155 S.O. Shahabuddeen] It is, in my opinion, equally clear that the Contadora process, though generically a pacific procedure, is not a "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 were not intended to be observed, with the suggested inference that the procedures followed were not those established by the Pact.

1

Article II of the Pact of Bogotá reads as follows:

"The High Contracting Parties recognize the obligation to settle 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."