Summaries of the Decisions
Border and Transborder Armed Actions
(Nicaragua v. Honduras)
On 28 July 1986, the Republic of Nicaragua 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. At the suggestion of Honduras, agreed to by Nicaragua, the
present 'phase of the proceedings was devoted, in accordance with an Order made
by the Court on 22 October 1986, solely to the issues of the jurisdiction of the
Court and the admissibility of the Application.
Judgment on the Jurisdiction of the Court and
Admissibility of the Application of 20 December 1988
As the basis of the jurisdiction of the Court, Nicaragua referred to the
provisions of Article XXXI of the Pact of Bogotá and to the Declarations
made by Nicaragua and Honduras accepting the compulsory jurisdiction of the
Court as provided for in Article 36 (1) and (2) of the Statute of the Court.
Nicaragua claimed to be entitled to found jurisdiction on a Honduras Declaration
of 20 February 1960, while Honduras asserted that that Declaration had been
modified by a subsequent Declaration, made on 22 May 1986 and deposited with the
Secretary-General of the United Nations prior to the filing of the Application
by Nicaragua.
Since in relations between the States parties to the Pact of Bogotá,
that Pact is governing, the Court first examined the question whether it had
jurisdiction under Article XXXI of that Pact.
Honduras maintained that the Pact did not provide any basis for the
jurisdiction of the Court putting forward two series of arguments supporting
this statement.
First, Honduras interpreted Article XXXI of the Pact to the effect that, for
a State party to the Pact which has made a declaration under Article 36 (2) of
the Statute, the extent of the jurisdiction of the Court under Article XXXI of
the Pact was determined by that declaration, and by any reservation appended to
it. It also maintained that any modification or withdrawal of such a declaration
which was valid under Article 36 (2) of the Statute was equally effective under
Article XXXI of the Pact. Honduras had, however, given two successive
interpretations of Article XXXI, claiming initially that to afford jurisdiction
it was to be supplemented by a declaration of acceptance of compulsory
jurisdiction and subsequently that it could be so supplemented but did not have
to be.
The Court considered that the first interpretation advanced by Honduras was
incompatible with the actual terms of Article XXXI of the Pact. As to the second
interpretation, the Court noted the two readings of Article XXXI of the Pact
proposed by the Parties: As a treaty provision conferring jurisdiction in
accordance with Article 36 (1) of the Statute or as a collective declaration of
acceptance of compulsory jurisdiction under Article 36 (2) of the Statute. Even
on the latter interpretation, however, the declaration, having been incorporated
into the Pact of Bogotá, could only be modified in accordance with the
rules provided for in the Pact itself. However, Article XXXI nowhere envisaged
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 (2) of the Statute was insufficient in itself to have
that effect.
The fact that the Pact defines with precision the obligations of the parties
lent particular significance to the absence of any indication of that kind. The
commitment in Article XXXI applied ratione materiae to the disputes
enumerated in that text; it related ratione personae to the American
States parties to the Pact; it remained valid ratione temporis for as
long as that instrument itself remained in force between those States. Moreover,
the commitment in Article XXXI could only be limited by means of reservations to
the Pact itself; it constituted an autonomous commitment, independent of any
other which the parties might have undertaken or might undertake by accepting
the compulsory jurisdiction of the Court under Article 36 (2) and (4) of the
Statute. The Court found further confirmation of its reading of Article XXXI in
the travaux préparatoires of the Pact. From these it followed
that, in their relations with the other parties to the Pact, States which wished
to maintain reservations included in a declaration of acceptance of compulsory
jurisdiction would have to restate them as reservations to the Pact. That
interpretation corresponded, moreover, to the subsequent practice of the parties
to the Pact.
The Court concluded that the commitment in Article XXXI of the Pact was
independent of such declarations of acceptance of compulsory jurisdiction as
might have been made under Article 36 (2) of the Statute. Therefore, the Court
dismissed the pertinent Honduran argument.
The second objection of Honduras was based upon its contention that Articles
XXXI and XXXII of the Pact were to be read together from which it followed that
the Court could only be seised under Article XXXI if there had been a prior
recourse to conciliation and lack of agreement to arbitrate, a situation which
did not arise in the present case. Nicaragua contended that Articles XXXI and
XXXII each conferred, independently of each other, jurisdiction upon the Court.
The Court held that the Honduran interpretation of Article XXXII ran counter
to the terms of that Article. A confirmation of this holding was to be found in
the travaux préparatoires of the Pact. The Honduran
interpretation would, moreover, imply that Article XXXI would be emptied of all
content if, for any reason, the dispute were not subjected to prior
conciliation; such a solution, however, would be clearly contrary to both the
object and the purpose of the Pact.
Thus, the Court found that Article XXXI of the Pact of Bogotá
conferred jurisdiction upon the Court to entertain the dispute submitted to it.
Therefore, it did not need to consider whether it might have jurisdiction by
virtue of the declaration of acceptance of compulsory jurisdiction by Nicaragua
and Honduras.
Honduras had raised four objections as to the admissibility of the
Nicaraguan Application, two of which were general in nature whereas the
remaining two were based upon provisions of the Pact of Bogotá.
As to the first ground of inadmissibitity, the alleged political motivation
of the proceedings, the Court observed that it could not concern itself with the
potitical motivation underlying a State's decision to choose judicial
settlement. The Court recalled, moreover, that, while there was no doubt that
the issues of which the Court had been seised might be regarded as part of a
wider regional problem, "no provision of the Statute or Rules contemplated
that the Court should decline to take cognizance of one aspect of a dispute
merely because that dispute has other aspects, however important".
As to the second ground of inadmissibility, the alleged vagueness of the
Application, the Court found that the Nicaraguan Application met the
requirements of the Statute and the Rules of the Court, namely that an
Application was to indicate the subject of the dispute, 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 was based.
The third ground of inadmissibitity put forward by Honduras was based upon
Article II of the Pact of Bogotá which Honduras interpreted to the effect
that the precondition of recourse to the procedures established by the Pact was
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 Court, noting a discrepancy between the four texts of Article II of the Pact
(the reference in the French text being to the opinion of only one of the
Parties), proceeded 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. In
order to ascertain the opinion of the Parties, the Court analysed in detail the
sequence of events in their diplomatic relations, in particular the development
of what had become to be known as the Contadora process. Since that
process was, as a result of the presence and action of third States, markedly
different from a "direct negotiation through the usual diplomatic channels",
it did not fall within the relevant provisions of Article II of the Pact of
Bogotá. Consequently, Honduras could not plausibly maintain, at the date
of the filing of the Nicaraguan Application, that the dispute between the
Parties was at that time capable of being settled by direct negotiation. The
Court, therefore, considered that the provisions of Article II of the Pact of
Bogotá did not constitute a bar to the admissibility of Nicaragua's
Application.
The fourth ground of inadmissibility put forward by Honduras was based upon
the contention that the Contadora process was to be considered as a "special
procedure" in the meaning of Article II of the Pact of Bogotá, and
that therefore Nicaragua was precluded both by Article IV of the Pact and by
elementary considerations of good faith from commencing any other procedure for
pacific settlement, such as the present procedures before the Court, until such
time as the Contadora process had been concluded, which had not been the
case at the date of the filing of the Nicaraguan Application. In order to decide
the issue as to whether the Contadora process had been concluded, the
Court resumed its survey of the Contadora process and considered that
this process had come to a standstill on 28 July 1986, the date on which
Nicaragua filed its Application. Since, however, the Contadora process
had been set in train again in February 1987, the Court had to decide upon the
question whether this latter procedure should be regarded as having ensured the
continuation of the Contadora process without interruption, or whether
on 28 July 1986 that process should be regarded as having been "concluded"
for the purposes of Article IV of the Pact of Bogotá, and a process of a
different nature as having got under way thereafter. Relying upon the
fundamentally different character of the two parts of the Contadora process
mentioned above, the Court concluded that the procedures employed in that
process up to the date of the filing of the Nicaraguan Application had been "concluded";
therefore, the submissions of Honduras based upon Article IV of the Pact of
Bogotá had to be rejected. As to the further contention of Honduras that
Nicaragua was precluded also by elementary considerations of good faith from
commencing any other procedure for pacific settlement, the Court considered that
the "conclusion" of the Contadora process had freed Nicaragua
also in relation to any other obligation to exhaust that procedure which might
had existed independently of the Pact of Bogotá.
Therefore, the Court found, unanimously, that it had jurisdiction to
entertain the Application filed by Nicaragua and, unanimously, that that
Application was admissible. Judge Lachs appended a declaration, and Judges Oda,
Schwebel and Shahabuddeen appended separate opinions to the Judgment.
