COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A DES ACTIONS ARMEES
FRONTALIERES ET TRANSFRONTALIERES

(NICARAGUA c. HONDURAS)

COMPETENCE DE LA COUR
ET RECEVABILITE DE LA REQUETE

ARRET DU 20 DECEMBRE 1988

1988

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING BORDER AND
TRANSBORDER ARMED ACTIONS

(NICARAGUA v. HONDURAS)

JURISDICTION OF THE COURT AND
ADMISSIBILITY OF THE APPLICATION

JUDGMENT OF 20 DECEMBER 1988
Mode officiel de citation :

Actions armées frontalières et transfrontalières (Nicaragua c. Honduras),
compétence et recevabilité, arrêt, C.I.J. Recueil 1988, p. 69.

Official citation :

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

N° de vente : 5 47
Sales number

69

INTERNATIONAL COURT OF JUSTICE
YEAR 1988

20 December 1988

CASE CONCERNING BORDER AND
TRANSBORDER ARMED ACTIONS

(NICARAGUA v. HONDURAS)

JURISDICTION OF THE COURT AND
ADMISSIBILITY OF THE APPLICATION

Jurisdiction of the Court, burden of proof — Intention of the Parties.

Charter of Organization of American States — Pact of Bogota, Article XXXI —
Relationship with Article 36, paragraph 2, of the Statute and with declarations
made thereunder — Article XXXI as an independent source of jurisdiction — Rela-
tionship between Articles XXXI and XXXII.

Admissibility of the Application — Political aspects — Division of general con-
flict into separate bilateral disputes — Res judicata — Required degree of particu-
larization of claim — Date at which admissibility to be determined: date of filing of
Application.

Pact of Bogota, Article II — Settlement under that Article by direct negotiations
through the usual diplomatic channels — Nature of the “Contadora process”.

Pact of Bogota, Article IV — Question whether any prior pacific procedure for
settlement of dispute was “concluded” before proceedings instituted — Case of the
“Contadora process” — Good faith.

JUDGMENT

Present: President RuDA; Vice-President MBAYE; Judges LACHS, ELIAS, ODA,
AGO, SCHWEBEL, Sir Robert JENNINGS, BEDJAOUI, NI, EVENSEN,
TARASSOV, GUILLAUME, SHAHABUDDEEN; Registrar VALENCIA-OSPINA.

1988
20 December
General List
No. 74
ARMED ACTIONS (JUDGMENT) 70

In the case concerning border and transborder armed actions
between

‘he Republic of Nicaragua,

‘epresented by
HE. Mr. Carlos Argiiello Gémez, Ambassador,
as Agent and Counsel,

Mr. Ian Brownlie, Q.C., F.B.A., Chichele Professor of Public International
Law in the University of Oxford; Fellow of All Souls College, Oxford,

Hon. Abram Chayes, Felix Frankfurter Professor. of Law, Harvard Law
School; Fellow, American Academy of Arts and Sciences,

Mr. Alain Pellet, Professor at the University of Paris-Nord and the Institut
d’études politiques de Paris,

as Counsel and Advocates,

Mr. Augusto Zamora Rodriguez, Legal Adviser to the Foreign Ministry of
the Republic of Nicaragua,

Mr. Antonio Remiro Brotons, Professor of Public International Law in the
Universidad Autonoma de Madrid,

Miss Judith C. Appelbaum, Reichler and Appelbaum, Washington, D.C.,
Member of the Bars of the District of Columbia and the State of Califor-
nia,

as Counsel,
and

the Republic of Honduras,

represented by
H.E. Mr. Mario Carias, Ambassador,
as Agent,

H.E. Mr. Jorge Ramon Hernandez Alcerro, Ambassador, Permanent Rep-
resentative to the United Nations,

as Co-Agent,

Mr. Derek W. Bowett, C.B.E., Q.C., LL.D., F.B.A., Whewell Professor of
International Law in the University of Cambridge,

Mr. Pierre-Marie Dupuy, Professor at the Université de droit, d'économie et de
sciences sociales de Paris,

Mr. Julio Gonzales Campos, Professor of International Law at the University
of Madrid,

as Advocates/Counsel,

Mr. Arias de Saavedra Muguelar, Minister at the Embassy of Honduras to
the Netherlands,

Mrs. Salomé Castellanos, Minister-Counsellor at the Embassy of Honduras
to the Netherlands,

as Counsel,
ARMED ACTIONS (JUDGMENT) 71

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 pro-
ceedings 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 provi-
sions of Article XX XI 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 juris-
diction of the Court, as provided for in Article 36, paragraphs 1 and 2 respec-
tively, 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 para-
graph 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 juris-
diction 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 agree-
ment 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 XXHI 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.
ARMED ACTIONS (JUDGMENT) 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 Or-
ganization would require each member State to be provided with copies of the
pleadings; he recorded his understanding, however, that the Court had noti-
fied 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 in-
formed the Court of an agreement concluded between the Presidents of the two
countries on 7 August 1987, whereby both Parties would request the Court “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 con-
sultation with the Agents of the Parties.

9. After the Agent of Honduras had, by a letter dated 1 February 1988, in-
formed the Court of a meeting between the Presidents of the Central American
countries held in San José, 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 Stat-
ute 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 Nica-
ragua had instructed him to withdraw the request for the indication of provi-
sional 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,
HE. Mr. J. R. Hernandez Alcerro,
Professor D. W. Bowett,
Professor P.-M. Dupuy.

For Nicaragua: H.E. Mr. Carlos Argüello 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-

7
ARMED ACTIONS (JUDGMENT) 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.

x O*

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 Interna-
tional 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 pre-
cluded 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 jurisdic-
tion 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.
ARMED ACTIONS (JUDGMENT) 74

3. Jurisdiction cannot be based on Article 36, paragraph 1, of the Stat-
ute 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 con-
sequently 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 Conta-
dora 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 dis-
pute ‘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 indi-
rectly’, 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 con-
dition of an agreement upon an arbitral procedure which relates exclu-
sively to Article XXXII.

6. The grounds of inadmissibility of the Application alleged to derive

9
ARMED ACTIONS (JUDGMENT) 75

from the provisions of Articles IT 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 Appli-
cation submitted by the Government of Nicaragua on 28 July 1986.

2. The competence of the Courts exists : by virtue of the Honduran Dec-
laration 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 Bogotä
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 sub-
missions as made in the Memorial and Counter-Memorial respectively, without
modification.

« * x

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. Hon-
duras has in its submissions contended, first that “the Application of Nica-
ragua 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

10
ARMED ACTIONS (JUDGMENT) 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’ dec-
larations 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 to have jurisdiction or not. This question has
already been considered by the Permanent Court of International Justice
in the case concerning the Factory at Chorzéw, Jurisdiction, when it
observed:

“It has been argued repeatedly in the course of the present pro-
ceedings 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 an objection — or when it has automatically to con-
sider 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 con-
tention 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_IJ., 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 Repub-
lic 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

11
ARMED ACTIONS (JUDGMENT) 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 Declara-
tion 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 Con-
ference 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 Mem-
ber States.”

One Chapter of the Charter was devoted to Pacific Settlement of Dis-
-putes, 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 and conciliation, judicial settle-
ment, 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.”

12
ARMED ACTIONS (JUDGMENT) 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. Nicara-
gua 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 con-
cluded “in fulfillment of Article XXIII of the Charter”. Nicaragua and
Honduras have since 1950 been parties to the Pact, in the case of Hon-
duras 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 jurisdic-
tion 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 State, the juris-
diction 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 authoriza-
tion from the National Congress granted by Decree Number Ten of
the nineteenth of December, nineteen hundred and forty-seven, and

13
ARMED ACTIONS (JUDGMENT) 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 obliga-
tion, 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, nine-
teen 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 Dec-
laration 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 Declaration”):

[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;

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ARMED ACTIONS (JUDGMENT) 80

(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. > CJ.
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 Applica-
tion 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 agree-
ment, 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 consti-
tute 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 dis-
putes to which the Republic of Honduras may bea party:

(a) disputes in respect of which the parties have agreed or may
agree to resort to other means for the pacific settlement of
disputes;

(b) disputes concerning matters subject to the domestic jurisdic-
tion of the Republic of Honduras under international law;

15
ARMED ACTIONS (JUDGMENT) 81

(c) disputes relating to facts or situations originating in armed
conflicts or acts of a similar nature which may affect the terri-
tory 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 terri-
torial sea and the legal status and limits thereof;

(ii) all rights of sovereignty or jurisdiction concerning the
legal status and limits of the contiguous zone, the exclu-
sive 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 withdraw 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 Govern-
ment of Honduras on 20 February 1960.

National Palace, Tegucigalpa, D.C., 22 May 1986.” (CJ. Year-
book 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 com-
pulsory 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 Perma-
nent Court of International Justice and which are still in force shall
be deemed, as between the parties to the present Statute, to be accept-
ances 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.”

16
ARMED ACTIONS (JUDGMENT) 82

Nicaragua recalls finally that the Court, in its Judgment in the case con-
cerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility
(CJ. Reports 1984, p. 441, para. 110), found that “the Nicaraguan Dec-
laration 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 Nicara-
gua and Honduras under Article 36 of the Statute.

27. Since, in relations between the States parties to the Pact of Bogota,
that Pact is governing, the Court will first examine the question whether it
has jurisdiction under Article XX XI of the Pact.

* *

28. Honduras maintains in its Memorial that the Pact “does not pro-
vide 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 provi-
sions of Article XXX] itself but argues that that Article nevertheless does
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 con-
tends 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, para-
graph 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, interpreta-
tion of the terms of the Pact, Article XXXT, in establishing the obliga-
tory jurisdiction of the Court, at the same time requires the additional
subscription, by each of the Parties, of a unilateral declaration of ac-
knowledgement of its jurisdiction, as provided for by Article 36.2 of
the Statute of the Court, to which Article XX XI 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 appli-
cation of Article XXXI and on the sole basis of the Honduran dec-
laration itself.”

17
ARMED ACTIONS (JUDGMENT) 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 XX XI 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 XX XI 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 régime 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 XXX] itself
operates as a joint acceptance of jurisdiction under Article 36, para-
graph 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 XX XI. 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 XX XI 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, para-
graph 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, para-
graph 2, of the Statute is equally effective under Article XXXI of the Pact.

Honduras has, however, given two successive interpretations of Arti-
cle XXXII, 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.

18
ARMED ACTIONS (JUDGMENT) 84

32. The first interpretation advanced by Honduras — that Arti-
cle XX XI 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 XX XI 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 ob-
serve at the outset that two possible readings of the relationship between
Article XX XJ 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 XX XI 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 Hon-
duran reading of Article XX XI 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 pro-
vided 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 par-
ties 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 Ameri-
can 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

19
ARMED ACTIONS (JUDGMENT) 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 conclu-
sion of the present Treaty”.

Similarly, Article VII lays down specific rules relating to diplomatic pro-
tection.

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 Ar-
ticle XX XI 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 undertaken or may undertake by depositing with the
United Nations Secretary-General a declaration of acceptance of com-
pulsory jurisdiction under Article 36, paragraphs 2 and 4, of the Statute.
Not only does Article XX XI not require any such declaration, but also
when such a declaration is made, it has no effect on the commitment result-
ing 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 préparatoires. 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 XX XI was discussed at the meet-
ing 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 accept-
ance 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-

20
ARMED ACTIONS (JUDGMENT) 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 re-
moval of any reservations to declarations of acceptance of compulsory juris-
diction. 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” ! (translation by the Registry).

38. This solution was not contested in the plenary session, and Ar-
ticle 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 States 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 juris-
dictional or other limitations contained in any Declaration deposited
by the United States under Article 36, paragraph 4, of the Statute 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 interpre-
tation of Article XX XI 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 a true reserva-
tion, 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 XX XI

“does not take into account the fact that various States in previous
acceptances 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 the case in respect to
the United States, and since the terms of its declaration had, in addi-
tion, 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

! “Pero deben constar en actas las palabras pronunciadas aqui, acerca de que se
entiende que es adhesi6n incondicional y que quedan removidas, automaticamente, las
reservas.” (Novena Conferencia Internacional Americana, Actas y Documentos, Vol. IV,
p. 167.) .

21
ARMED ACTIONS (JUDGMENT) 87

ipso facto and without special agreement is limited by any jurisdic-
tional 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 XX XI. It obviously was a reservation to the Pact, the existence of
which confirms the interpretation of Article XX XI 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 XX XI and the dec-
larations 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 amend-
ing 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 con-
cerning 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 reserva-
tion to the Pact or concerning the validity of its declaration of acceptance
of compulsory jurisdiction. It follows that that precedent is in no way

22
ARMED ACTIONS (JUDGMENT) 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 com-
mitment 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 XX XI. 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 solu-
tion, 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 Arti-
cle 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 Arti-
cle XXXII are two autonomous provisions, each of which confers juris-
diction 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 con-
ciliation under the General Convention of Inter-American Conciliation
of the same date. It maintains accordingly that the Court can be seised,
under Article XX XI, 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 have not been satisfied.

23
ARMED ACTIONS (JUDGMENT) 89

45. Honduras’s interpretation of Article XXXII runs counter to the
terms of that Article. Article XXXII makes no reference to Article XX XI;
under that text the parties have, in general terms, an entitlement to have
recourse to the Court in cases where there has been an unsuccessful con-
ciliation.

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 be thought 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 “différend (dispute)”, used in Article XX XI, 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 XXX] 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 pro-
cedural conditions for bringing before the Court disputes for which juris-
diction 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 is also confirmed by the travaux
préparatoires: the discussion at the meeting of Committee III of the
Conference held on 27 April 1948 has already been referred to in para-
graph 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” ! (translation by the Registry).
Honduras’s interpretation would however imply that the commitment, at
first sight firm and unconditional, set forth in Article XX XI 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.

47. In short, Articles XXXI and XXXII provide for two distinct ways

! “La Subcomisiôn estimé 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).

24
ARMED ACTIONS (JUDGMENT) 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 Arti-
cle 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 par-
ticular 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 interpreta-
tion 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.

a * x

49. The Court now turns to the question of admissibility of the Nicara-
guan 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 Appli-
cation. Nicaragua alleges the existence of armed bands, generally known
as the contra forces, openly based in Honduran territory and carrying out
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 Hon-
duras has incurred legal responsibility for the breach of, inter alia, the
prohibition of the threat or use of force as provided by 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

25
ARMED ACTIONS (JUDGMENT) 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 Nica-
ragua 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 disputé brought beforeit. 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 applica-
tion inadmissible. The purpose of recourse to the Court is the peaceful
settlement of such disputes; the Court’s judgment is a legal pronounce-
ment, 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 divid-
ing 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 con-
flict “are inevitably absent from the proceedings before the Court”, and
other facts have already been in issue before the Court in the case concern-
ing Military and Paramilitary Activities in and against Nicaragua (Nicara-
gua v. United States of America). Honduras contends that no real distinc-
tion 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,

26
ARMED ACTIONS (JUDGMENT) 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. Never-
theless, as the Court observed in the case concerning United States Diplo-
matic 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” (C.J. Reports 1980, p. 19, para. 36).

55. The second Honduran objection to admissibility is that “the Appli-
cation is vague and the allegations contained in it are not properly particu-
larized, so that the Court cannot entertain the Application without sub-
stantial 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 Appli-
cation 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 Appli-
cation is required to specify “the precise nature of the claim”, and in sup-
port 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 con-
siders 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 admis-
sibility 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 objec-
tion to admissibility, reads as follows:

“The High Contracting Parties recognize the obligation to settle

27
ARMED ACTIONS (JUDGMENT) 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 par-
ties 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 Nicara-
gua fails to satisfy an essential precondition to the use of the pro-
cedures 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 Hondu-
ras on the question was stated by its Co-Agent at the hearings. Referring to
the requirement in Article IT 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). Hon-
duras has asserted that the negotiations in that context were “direct nego-
tiations” 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 nego-
tiation in order to discount any distinction between the direct bilateral

28
ARMED ACTIONS (JUDGMENT) 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 IT 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 opin-
ion 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 settle-
ment which would shatter the whole carefully constructed scheme of com-
pulsory 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 dis-
pute 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 possibil-
ity. 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 IT 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 corre-
sponding 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 dis-
crepancy, 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-

29
ARMED ACTIONS (JUDGMENT) 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 func-
tion, 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 negotia-
tions 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 inten-
tions. It cannot substitute its own opinion for that of the Parties as to
whether the dispute is susceptible to settlement by direct negotia-
tions.”

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 deter-
mine with certainty what the situation was at the date of filing of the Ap-
plication, to examine the events, and in particular the relations between
the Parties, over a period prior to that date, and indeed during the subse-
quent 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 ana-
lyse 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 com-
menced 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

30
ARMED ACTIONS (JUDGMENT) 96

material support given to those opponents, which have compelled it to
protest diplomatically to Honduras “continuously since 1980”. The Presi-
dents of the two States held talks on these matters at El Guasaule, Nicara-
gua, 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 Teguci-
galpa on 21 April 1982, Nicaragua responded with a seven-point plan call-
ing 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 Govern-
ment. 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 Hon-
duras’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:

“T 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 con-
fronted 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, event-
ually producing a plan of internationalization which led to unsuccessful
Nicaraguan counter-proposals.

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.

31
ARMED ACTIONS (JUDGMENT) 97

They urgently called upon all Central American countries “to reduce ten-
sions 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 Cancün Declara-
tion 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 imme-
diate discussions with a view to reaching agreements on certain points;
he added:

“Nicaragua states its willingness to assume, with full responsibil-
ity, all commitments arising from the said agreements and makes this
clear by accepting the point of view of the Heads of States of the Con-
tadora 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 out 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 Cancün Declaration.

71. On 9 September 1983 the Group drew up a “Document of Objec-
tives” 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 détente 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 [1.e., that of the participant

32
ARMED ACTIONS (JUDGMENT) 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 sub-
mission of five proposed treaties, collectively called “Legal Bases for
Guaranteeing Peace and the International Security of the Central Ameri-
can 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 bul-
letin noting inter aliathat 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 cir-
culated 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 Con-
tadora 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.

33
ARMED ACTIONS (JUDGMENT) 99

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 pro-
cess 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 subor-
dinate. 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 plau-
sibly 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 consider-
ations of good faith from commencing any other procedure for

34
ARMED ACTIONS (JUDGMENT) 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 agree-
ment 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 proceed-
ings 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 insti-
tuted 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 Arti-
cle 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 IIT and IV of the Pact would not have to be deter-
mined 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”.

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 pro-
cedure 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,

35
ARMED ACTIONS (JUDGMENT) 101

81. In order to decide this issue in the present case, the Court will re-
sume 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 nego-
tiation 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 communiqué 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 rec-
ognize that some aspects remain outstanding, such as military
manceuvres, 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 differ-
ences as remained, but came to the conclusion that it would be impossible
for the Act to be signed on the appointed date; they nevertheless “commu-
nicated 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:

36
ARMED ACTIONS (JUDGMENT) 102

“Once this question is resolved, we propose to proceed imme-
diately to another phase of the negotiations, referring to matters of
an operational character and which will refer mainly to the estab-
lishment 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 communiqué,
stating, in particular:

“1. The last project for an instrument (‘acta’) proposed by Con-
tadora 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 sub-
stantive elements of the ‘acta’, but that notwithstanding 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 conti-
nue exploring new 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 communiqué, 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 effi-
cient 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 Nations (UN doc.
A/40/1136; S/18184), and handed to him a letter recounting develop-
ments since September 1985; in that letter the Group stated:

“Now that the substantive issues of the Contadora Act have been
resolved, as the Central American Governments have unequivocally

37
ARMED ACTIONS (JUDGMENT) 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, meet-
ing in New York during the United Nations General Assembly, expressed
their concern in a declaration 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 communiqué issued in
Mexico in January 1987, they could do no more than reiterate their “deter-
mination 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 Presi-
dent 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 Sup-
port 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
stated intention of the Government of Costa Rica to sponsor, at the pro-
posed 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, democratiza-
tion, free elections, a halt to aid to irregular forces or insurrectionist move-
ments, and the non-use of territory to attack other States. The role which
was thereafter 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, verifi-
cation and control. Section 10 (a) provided for an International Verifica-

38
ARMED ACTIONS (JUDGMENT) 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 commit-
tee 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 Ameri-
can 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
standstill at the date on which Nicaragua filed its Application. This situa-
tion continued until the presentation of the Arias Plan and the adoption
by the five Central American States of the Esquipulas IT Accord, which in
August 1987 set in train the procedure frequently referred to as the Con-
tadora-Esquipulas II process. The question therefore arises, for the pur-
poses of Article IV of the Pact, whether this latter procedure should be
regarded as having ensured the continuation of the initial procedure with-
out 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 indi-
cated that “the Contadora process has not been abandoned or suspended
at any moment”. As for Honduras, it declared that “the Contadora pro-
cess 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 I] 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 IV 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 “Con-
tadora”, the fact is that that title has become practically a symbol of all the

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ARMED ACTIONS (JUDGMENT) 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 IT 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 Con-
tadora-Esquipulas IT 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 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 Con-
tadora process and the beginning of the Contadora-Esquipulas II pro-
cess; and it was during this gap that Nicaragua filed its Application to the
Court.

93. The Court concludes that the procedures employed in the Conta-
dora process up to 28 July 1986, the date of filing of the Nicaraguan Appli-
cation, 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 per-
formance 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 Hon-
duras is that, on the basis of successive acts by Nicaragua culminating in

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ARMED ACTIONS (JUDGMENT) 106

the Esquipulas Declaration of 25 May 1986 (paragraph 81 above), Nicara-
gua 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.

x Ox

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 admis-
sibility of an Application brought before it as a matter of law. Accord-
ingly, 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 not 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 issues are how-
ever 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...

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

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ARMED ACTIONS (JUDGMENT) 107

adopted under that instrument were not intended to exclude “the right of
recourse to other competent international forums”.

k OF

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.

x * x»

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) José Maria RUDA,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Judge Lacus appends a declaration to the Judgment of the Court.

Judges Opa, SCHWEBEL and SHAHABUDDEEN append separate opinions
to the Judgment of the Court.

(Initialled) J.M.R.
(Initialled) E.V.O.

42
108

DECLARATION DE M. LACHS
[Traduction]

L’arrét de la Cour doit nécessairement ne traiter et ne résoudre que des
questions de procédure (compétence et recevabilité). On peut reprocher
aux arrêts de ce genre d’être apparemment empreints de juridisme.

C'est cependant une des activités essentielles de tout tribunal que de
trancher des questions de procédure puisque ces questions déterminent
l'attitude qu’il adopte quant au sort à réserver à un différend porté devant
lui. En prenant une telle décision, la Cour peut soit statuer définitivement
sur ce différend, soit ouvrir la voie à l'examen au fond. Lorsqu'elle se pro-
nonce, la Cour doit veiller avec le plus grand soin à décourager toute ten-
tative de porter devant elle un différend en l’absence de fondement de
juridiction adéquat, sans pour autant nier aux Etats le droit qui est le leur
de bénéficier de ses décisions lorsqu'il existe un tel fondement. Il suffit
parfois d’ouvrir la voie à l'examen au fond pour qu’un différend trouve sa
solution.

Dans la présente affaire, la Cour a dû prendre des décisions qui
n'étaient pas sans soulever de délicates questions, ainsi qu’il ressort de la
lecture de l’arrêt. La responsabilité des juges était grande, qu’il s'agisse de
l'examen de la situation dans laquelle l’affaire s’inscrivait ou de l’aspect
juridique de leur responsabilité.

La Cour n’a pas préjugé l’avenir. Les Parties conservent donc leur
liberté d’action et toutes possibilités de trouver des solutions.

Toutes ces considérations m’ont conduit à donner mon appui à cette
décision de la Cour. Sur les dix-neuf arrêts à l’élaboration desquels j’ai
participé, c’est le dix-huitième pour lequel j’ai voté affirmativement.

(Signé) Manfred Lacus.

43