|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
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
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
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
"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
[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
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.
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