iS)
1
F4

DISSENTING OPINION OF JUDGE URRUTIA HOLGUIN
[Translation ]
I regret that I am unable to concur in the Judgment of the Court.
I must state my personal conclusions on:
I. The legal doctrines involved.

Ii. The different concepts in America and in Europe as to the
exercise of the right of States to contest arbitral awards.

III. The «ti possidetis juris rule which in America excluded
decisions in equity.

IV. Possible defects giving rise to nullity and acts of acquiescence
in the Award of the King of Spain of 23 December 1906.

I. LEGAL DOCTRINES

During the course of the present proceedings both Nicaragua and
Honduras have set forth legal theories, as to which certain obser-
vations should be made:

Effects of the nullity of arbitral awards

In international law, there are not some defects which are
“sanabiles” and others which are ‘‘insanabiles’’, the reason being
that there is no compulsory international jurisdiction by means of
which the causes of nullity may be put right. The absence in inter-
national law of such a body cannot confer an automatic character
upon nullity, allow a State to be judge in its own case and to declare
itself free from any obligation to carry out an award, just as on the
other hand it cannot confer an automatic character on an absolute
presumption of the validity of the award nor confer the right to
require its execution without permitting the verification of its
validity when the other party validly raises grounds of nullity.

In a conflict between the rights of the State which invokes the
nullity of an arbitral award and of the State which relies upon res
judicata, the only recourse at the disposal of the countries is to
ask an international court to decide the question whether there is
a judgment having binding force.

In Latin America, in all the cases referred to in Part II in which
the award was disputed, its execution was suspended and the
question of its validity referred to the decision of a new arbitrator—
as, moreover, in the present case, where Counsel for Honduras
explained (at the meeting of 7 October) that the country which he
represented claimed the execution of the award, but that the obli-
gation to give effect to the award resulted only from

“a finding by the Court of its binding force”.
JUDGMENT 18 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 222

The Court was asked to consider the cases in which acts of
acquiescence, estoppel, or the belated raising of grounds of nullity
might limit the right of a State to dispute the validity of an award
or might deprive it of that right.

(i) Acquiescence. To see what effect acquiescence may have in
regard to an award the validity of which is disputed, it is necessary
to define the possible limits of acquiescence, and to see whether
it is within the power of acquiescence to revive the non-existent
effects of an award which is void.

In civil law there are acts which are null and void which cannot
be given life even by subsequent acceptance by the parties. In
international law, however, States are sovereign and are bound
by no limitation upon their acceptance of or agreement to anything
whatsoever.

States may agree, if they think fit, to the carrying out of the
provisions of a null and void award, but in that case the cause and
the legal basis of the provisions of the award are not to be found
in the award which is a nullity, but in the valid agreement between
two Sovereign States.

If there are in the award itself any essential defects of which
the parties cannot know before they receive the text of the award,
it is possible to regard as acquiescence only some formal decla-
ration by the competent organ of the State making clear that it
expressly renounces the right to dispute the validity of the award.

In treaties which submit a question for decision ‘without appeal”
by an arbitrator or a court, the parties renounce the right to bring
proceedings “‘on appeal’, but they cannot in advance renounce
the right ever to contest a future award, the contents of which
they do not know, on the ground that it is a nullity.

(ii) Estoppel. The objection on the grounds of good faith which
exists in almost all legal systems and which prevents a party from
profiting by its own misrepresentation and which, in Anglo-Saxon
law, is known as estoppel, would be applicable in the present case
if it were proved that the action and behaviour of one of the States
caused the other State to place reliance upon its acts of acquies-
cence and to believe in its renunciation of its right to dispute the
validity of the award.

(iii) Belated raising of grounds of nullity. So far there does not exist
in international law any uniform custom which makes it possible to
assert that inaction on the part of States which may have interest
in invoking a ground of nullity involves any presumption of their
renunciation of the right to contest the validity of an award.

In private law there are rules relating to prescription and
limitation but in general, in almost all legal systems, an exception
is made in respect of the rights of the State, which are held not to
be barred by the passage of time.

34
JUDGMENT 18 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 223

In international relations, in certain cases the challenging of an
award by the State concerned has been immediate. In other cases,
several years have elapsed before it was disputed. In the St. Law-
rence River case, the award made in 1814 was contested in a Note
of 1831 and the contestation was accepted in 1842. In the case
between Venezuela and Colombia, the King of Spain’s award was
rendered in 1891. Venezuela originally accepted the award but
in 1917 secured the agreement of Colombia to the submission of
the question of the validity of the award to the Swiss Federal
Council. Costa Rica’s contestation of President Loubet’s award of
1897 was not brought before Chief Justice White until 1910.

In America, in eleven bilateral treaties on general arbitration
signed before 1911, a procedure for review on the ground of the nullity
of the award was provided for. In two of those treaties, a time-limit
of from three to six months was laid down for bringing the pro-
ceedings, and in the other cases it was simply stated that they
should be brought before the carrying out of the award.

IJ. DIFFERENT CONCEPTS IN AMERICA AND IN EUROPE
AS TO THE EXERCISE OF THE RIGHT OF STATES
TO CONTEST ARBITRAL AWARDS

The rules and customs generally accepted in America were in
1894 and 1907 far from being those which may be regarded as the
most desirable for giving greater authority to arbitration in the
international law of 1960.

Whereas in Europe there had only been recourse to arbitration in
the nineteenth century with the greatest precautions and on the
basis of special agreements signed in respect of each particular case,
America was in advance of the times and had, between 1847 and
the Second Hague Conference, signed more than two hundred
general treaties of arbitration. In forty-eight of these compulsory
arbitration was provided for in respect of territorial questions.

That explains why at the Hague Conference of 1907 (only Mexico
had been invited to the 1899 Conference) the American represent-
atives: (1) urged the ideal approved in America of compulsory
arbitration, even for territorial questions, (2) insisted that it should
be restricted to legal decisions, and (3) supported the establish-
ment of a body to verify the validity of awards. In 1907 European
prudence, on the contrary, sought. to confine the notion of arbi-
tration: (1) to questions which did not involve. the honour or the
essential interests of States, (2) to arbitration all the rules for which
had been laid down in the special agreement, and (3) to awards
against which the possibility of any type of remedy was resisted.

Faced with the difficulties presented, in 1960, by the interpre-
tation of the intention of the parties in signing a treaty in 1894, the

35
JUDGMENT I8 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 224

circumstances in which certain proceedings took place in 1904, or
the significance of the actions of American States in 1906, the Court
cannot lose sight of the fact that the diplomatic history of the
evolution of the principle of arbitration in America is more authori-
tative than the literal or textual examination of documents.

In the case with which we are dealing, it is of particular importance
not to pass a judgment on the acts or behaviour of the parties in
their attempts to ask for explanations or to verify the validity of
awards, without studying the customs which, as regards those
aspects of arbitration procedure, were accepted in America at that
time.

Although the existence of grounds of nullity in respect of arbitral
awards was recognized by the Institut de Droit international as long
ago as 1875, the idea has been accepted in Europe only with very
marked reserve.

At the Hague Peace Conferences in 1899 and 1907 the possibility
of calling in question the validity of an award was deleted from
the two draft Conventions in view of the difficulty of suggesting
any authority which should adjudicate upon the issue of validity.
The reserve up till 1907 with regard to this aspect of the evolution
of the law in Europe is explained in the course of lectures by Profes-
sor Borel on “Votes de recours contre les sentences arbitrales” (1935,
IT), and M. Lammasch expressed this European reticence when in
1914 he proposed that proceedings to upset awards should only
be allowed with the consent of the arbitrator.

In America, on the other hand, as early as 1899, arbitration
treaties had been signed containing clauses which provided for
review of awards on grounds of nullity.

In a series of treaties of which the first two were signed in 1899
with Paraguay and with Uruguay, Argentina accepted arbitration
by tribunals whose award could be challenged in the event of
falsification of documents or “error of fact” resulting from the
procedure or from the documents submitted to the arbitrator.

Before the Hague Conference, four other treaties on the same
lines were signed: by Bolivia and Peru in 1902, by Argentina and
Bolivia in 1902, by Brazil in 1907, by Chile in 1902, and two others
in 1911 and 1912 between Colombia and Argentina and between
Argentina and Ecuador.

In 1902 and 1905 Brazil signed general arbitration treaties with
Bolivia and Peru, in which a new aspect of the nullity of awards
was provided for, namely the case where, in whole or in part, the
award was based on an error of fact ; and in 1907 Peru and Colombia
went further, and allowed review in cases where the award was
. allegedly based on a ‘‘positive or negative” error of fact.

Historical circumstances explain these two tendencies:

In Europe, up to the beginning of the present century, resort
was as a rule had to arbitration only for the settlement of questions

36
JUDGMENT I8 XI 60 (DISS. OPIN, JUDGE URRUTIA HOLGUIN) 225

relating to concessions, claims or compensation which, in sixteen
out of twenty-two cases cited between 1850 and 1910, had to be
paid by American countries on the basis of arbitral awards more
often than not manifestly unjust or vitiated by defects rendering
them nullities, and it is understandable that the European countries
were not inclined to weaken the principle of ves judicata nor to
accept a change in the rule as to the execution without appeal of
awards which had been so successful from their point of view.

In America, on the other hand, the legal abuses to which these
arbitrations gave rise resulted in the express recognition of the
right of States to challenge the validity of arbitral awards in the
eleven treaties signed between 189g and 1912, mentioned above,
and in all arbitrations regarding territorial boundaries where the
awards were disputed, and which were the following:

(a) The boundary case between Colombia and Venezuela in
which the King of Spain’s arbitral award was accepted by the
parties in 1891 but in which another arbitration by the Swiss
Federal Council was agreed upon in 1917 to decide all the questions
relative to the King’s award.

(b) President Loubet’s award of 1897 in the case between Costa
Rica and Panama, which was disputed by Costa Rica and never
carried out.

(c) The award by Chief Justice White in 1910, in the proceedings
between Panama and Costa Rica in respect of President Loubet’s
award, which was held by Panama to be vitiated and a nullity
and was never carried out.

(d) The validity of the award of 1909 by President Figueroa
Alcorta in the frontier dispute between Bolivia and Peru, which
was contested by Bolivia. As A. Sanchez de Bustamante explained
in his opinion on the question of Costa Rica and Panama, page 11:

“The Award rendered by Dr. Figueroa Alcorta on g July 1909
immediately gave rise to a protest by Bolivia, on the ground that
the arbitrator had exceeded his powers and had not kept to the
terms of the Agreement ... despite ill-informed passions which
were dangerously over-excited, both at Buenos Aires and at Lima
patriotism in the end finished by seeing reason, the Peruvian Govern-
ment renounced part of the advantages which the arbitrator's
award offered to it, and dealt directly with its former opponent
to arrange in a friendly way the boundary of their respective posses-
sions.

{e) The United States disputed and today still disputes the
validity of the award of 1910 in the Chamuzal case with Mexico.
Mexico has still not been able to obtain either the carrying out of
the award or agreement to submit the question of its validity to
the consideration of another tribunal.

37
JUDGMENT 18 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 226

(f) In a matter where not only American countries were concern-
ed, but also Great Britain, the United States disputed the King of
Holland’s award on the St. Lawrence River boundary ; that country’s
objections were accepted by the other side and the award had no
effects.

In several cases arising between American countries and bearing
upon claims which were submitted to arbitration, the right
to verify the validity of the award was also recognized (Akra
Silver Mining in 1898, Paraguay Navigation Company in 1860,
the Orinoco case in 1904), but, in disputes regarding national
sovereignty and territorial questions, the contestation was in all
cases accepted or submitted to the decision of a new arbitrator.

III. ARBITRATIONS AGREED TO ON THE BASIS OF
“UTI POSSIDETIS JURIS’» COULD ONLY BE ON A STRICT BASIS OF
LAW AND EXCLUDED DECISIONS IN EQUITY

The countries of Latin America whose constitutions had fixed
their boundaries on the basis of the wiz possidetis juris existing
at the time when they became independent envisaged only strictly
legal decisions when they undertook to submit the delimitation
of their boundaries to arbitration.

This rule which the parties laid down for recourse to arbitration
was not merely academic but a condition precedent sine qua non
which had its origin in the actual constitutions of the States.

The reason why Colombia, Costa Rica, Venezuela, Nicaragua,
Honduras, Peru and Ecuador applied to the King of Spain is
explained in the decision of the Swiss Federal Council in the pro-
ceedings concerning the Award rendered by the King of Spain
in 1891 in the dispute between Colombia and Venezuela:

“When the Spanish colonies of Central and South America pro-
claimed their independence in the second decade of the nineteenth
century, they adopted a principle of constitutional and international
law to which they gave the name of uti posstdetis juris of 1810 for
the purpose of laying down the rule that the boundaries of the
newly established republics should be the frontiers of the Spanish
provinces which they were succeeding. This general principle offered
the advantage of establishing an absolute rule that in law no terri-
tory of the former Spanish America was without an owner. Although
there were many regions that had not been occupied by the Spanish
and many regions that were unexplored or inhabited by uncivilized
natives, these regions were regarded as belonging in law to the respec-
tive republics that had succeeded the Spanish provinces to which
these lands were connected by virtue of old royal decrees of the
Spanish mother country. These territories, although not occupied
in fact, were by common agreement considered as being occupied in
law by the new republics from the very beginning. Encroachments
and ill-timed efforts at colonization beyond the frontiers, as well as
de facto occupation, became ineffective and of no legal consequence.”
JUDGMENT 18 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 227

The countries which asked the King of Spain to interpret the
uti possidetis juris in accordance with the titles of Spanish sover-
eignty thus did so because they thought that he was the best
qualified authority to interpret his own legal rules, but they cer-
tainly did not think of entrusting to “his equity” the interpretation
of constitutional clauses which had in fact been approved for the
very purpose of throwing off the Spanish yoke.

IV. POSSIBLE DEFECTS GIVING RISE TO NULLITY AND ACTS OF
ACQUIESCENCE IN THE AWARD OF THE KING OF SPAIN

Of the four arbitrations entrusted to the King of Spain by these
countries, that between Colombia and Venezuela could not be
carried out until the decision of 1923 in the new proceedings before
the Swiss Federal Council. The arbitration between Colombia and
Costa Rica was withdrawn from the King’s consideration in 1896,
shortly after his Award in the previous case,andthe King himself
in 1910 declined to give a decision in the arbitration between
Peru and Ecuador twenty-three years after the matter had been
submitted to him. The fourth arbitration is that between Honduras
and Nicaragua.

On the basis of the principles set forth in the foregoing parts,
and bearing also in mind the historical reasons which explain the
origin of this arbitration, let us consider the King’s Award of
23 December 1906 for the purpose of ascertaining

(a) whether the extrinsic defects of the Award entail its nullity ;

(b) whether there are intrinsic defects evident in the Award,
and whether Nicaragua has forfeited the right conferred upon it by
international law to rely on those grounds of complaint, either by
reason of her acquiescence or because of their belated submission.

(a) Extrinsic defects

The Court considers that the extrinsic defects of the Award
resulting from the arbitrator’s lack of powers are covered by Nica-
ragua’s subsequent acts of acquiescence.

I consider that the extrinsic defects do not entail the nullity of
the Award, for different reasons:

(1) The appointment of the King was irregular, since not all the.
procedures laid down by the Treaty were complied with. The arbi-
trators were not authorized to jump from Article III to the end
of Article V, leaving out of account mandatory provisions which
it was not within their duties nor their competence to be able to
change.

(2) There are other manifest irregularities, such as that of the
intervention of the Spanish Minister, M. Carrere y Lembeye, in
the choice of the King of Spain as sole arbitrator, since if the
tribunal 1 provided for in the Gdmez-Bonilla Treaty had already

39
JUDGMENT I8 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 228

been set up on 2 October 1904, M. Carrere y Lembeye was himself
the third arbitrator and the tribunal, once constituted, could not
give up its duties and transfer them to a new arbitrator. If, on the
contrary, what was involved was merely a preparatory meeting,
the Honduran and Nicaraguan arbitrators had no need of M. Car-
rere y Lembeye, who could not take part in the discussions of the
tribunal unless he had already been appointed third arbitrator.

The procedural irregularities at the meetings of 2, 10 and 18 Oc-
tober were not, however, in contradiction with the chief object
of the Gamez-Bonilla Treaty, which was to submit the question
to a procedure which envisaged the possibility, provided for in
Article V, of appointing the Spanish Government as arbitrator.

The fact that the two Governments accepted the appointment
of the King, welcomed the choice and argued the case at Madrid,
proves that they did not regard as essential the rules of procedure
which had been laid down, and non-essential defects do not involve
nullity.

Doubts have also been put forward as to the date when the period
of ten years of the Gdmez-Bonilla Treaty began to run. The inten-
tion of the parties is not clear, and different interpretations of
the Treaty might be justified, if both Nicaragua and Honduras
had not themselves in 1904 believed in good faith that the Treaty
had not expired.

It would be questioning the President of Nicaragua’s good faith
to suppose that he sent a telegram on 7 October 1904, expressing
his hope that the King would accept the task of arbitration, on
the very day when the Treaty came to an end.

It is not acquiescence and acceptance which revalidate these
irregularities, but the interpretations by the Parties in 1904 of
the Gamez-Bonilla Treaty, which are definitive and which cannot
now be called in question.

(b) Acquiescence and intrinsic defects of the Award

To be able to assert, as the Court does, that Nicaragua, by express
declaration and by conduct, recognized the Award as valid and
binding and that it is no longer open to Nicaragua to go back upon
that recognition and to challenge the validity of the Award, it
must first of all be established whether there are essential defects.

I. Intrinsic defects

The fundamental question on which my opinion is different from
that of the majority of the Court is that of the interpretation of
the rules of the special agreement set forth in Article II of the
Gamez-Bonilla Treaty. Interpreting those rules in a different way.
I come to the conclusion that the King exceeded his powers and,
thus faced with the nullity of the Award, I cannot accord the same
weight to the acts of acquiescence found by the Court.

40
JUDGMENT 18 KI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 226

(i) Interpretation of the rules of the Agreement

For the reasons set forth in Parts II and III on the legal rules
accepted by the American countries, I do not consider that all the
paragraphs of Article II had the same importance.

The rules which constituted a condition precedent governing
the whole arbitration were those of paragraphs 3 and 4 on the
fixing of the boundaries in accordance with the legal titles existing
at the date of independence.

This rule is strengthened by the fact that the arbitrator is expressly
forbidden to recognize any juridical value to de facto possession.

These two mandatory rules were in conformity with the consti-
tutional provisions of the two countries, and it is difficult to believe
that their Parliaments ratified this Treaty while attributing to
other paragraphs (5, 6 and 7) of Article II a scope which would
have the effect of making them prevail over or which would be
in conflict with the rule in their Constitutions.

The text adopted in paragraphs 5 and 6 of Article I] of the Gamez-
Bonilla Treaty was practically the same as that proposed in 1886
by Colombia and Venezuela, adopted again in the Treaty of 1886
between Nicaragua and Costa Rica, the Treaty of 1902 between
Bolivia and Peru, and the Treaty of 1930 between Guatemala and
Honduras. ,

The interpretation given both by the parties and by the arbitra-
tors to clauses drawn up in the same terms as those of Article IE
of the Gamez-Bonilla Treaty is in consonance with the idea of
arbitration strictly on the basis of law and does not recognize the
right of the arbitrator to determine a line “according to equity”.

These treaties and the interpretations put upon them are as
follows:

(a) Arbitration by President Figueroa Alcorta
In 1902 Peru and Bolivia signed an arbitration agreement which
laid down a rule similar to that of paragraph 4 of Article [T of the
Gamez-Bonilla Treaty:
“Art. 3.—The possession of a territory, although held by one of

the parties, cannot have effect nor prevail against the titles or
royal dispositions setting forth the contrary’,

and another Article which authorized compensations in the follow-
ing terms:

“Art. 4.—Only when the royal acts or dispositions do not define
the dominion of a territory in clear terms shall the arbitrator decide
the question according to equity, keeping as near as possible to
the meaning of those documents and to the spirit which inspired
them.”

These two Articles gave the arbitrator indisputably fuller and
clearer powers than those conferred by the Gamez-Bonilla Treaty.

4
JUDGMENT IS NI 60 (DISS. OPIN, JUDGE URRUTIA HOLGUIN) 230

Despite these authorizations, President Figueroa Alcorta was
unwilling to interpret them as a right to decide the question as a
whole according to equity but merely to fix the frontier line so that
it should follow those geographical features which were nearest
to the legal line.

But the application even in this restricted sense of the right
laid down in the arbitration agreement gave rise to protests, and
Argentina and Bolivia broke off relations, but the Argentine inter-
nationalist Sanchez Sorondo in the book which he published to
justify the award and the attitude of President Figueroa Alcorta
explained in the following terms how this article of the agreement
was interpreted by the Argentine President:

“The arbitrator was in any case a judge of law and in no sense
a judge of conscience. The treaty laid down two rules to qualify
the results of his historical and legal investigation. The first was
direct and derived from an express title, the second was approxi-
mate and derived from the sense and the spirit of titles which were
neither clear nor precise. But the equity of which the treaty speaks
is not subjective but merely a matter of the interpretation of the
documents submitted.

. he could not draw capricious lines based upon reasons which
could not be inferred from the documents, nor settle the dispute
as a mediator by the proportional division of the territory in ques-
tion.”

In his last recital but one, President Figueroa Alcorta confirmed
that he ‘‘would settle these questions equitably, keeping as near
as possible to the sense of the royal provisions”.

(b) Arbitration by the King of Spain in the boundary dispute
between Venezuela and Colombia

This was signed in 1881, but Venezuela refused to accept the
clause which conferred the power of judging “in equity”, explaining
that legal decisions could be considered declaratory, whilst a deci-
sion in equity would imply a cession of territory forbidden by the
federal constitution.

In 1886, Colombia secured the following clause in an additional
instrument signed at Paris:

‘.. The arbitrator may fix the line in the way which he thinks
the closest to the existing documents when, in one or another part
of the line, those documents are not sufficiently clear.”

The power thus conferred was similar to that laid down in the
Gâmez-Bonilla Treaty, yet the King only made use of it in respect
of two sectors and for the following reasons: (1) in the Sarrare
region, because “‘the Royal cédula of 1786, which must serve as the
legal basis for the fixing of the boundary in the fifth sector, raises
doubts in that it mentions the names of places not known today,
namely the Barrancas de Sarrare and the Paso Real de los Casa-

42
JUDGMENT I8 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 231

nares’’; the King chose the course of the river ‘‘Sarrare’’, on the
basis of an interpretation of certain ancient documents which
indicated that those two points lay ‘‘in the line of communication
between Sarrare and the Arauca’’; (2) in the second part of the
sixth sector, the King accepted as title of sovereignty the Royal
cédula of 1786 and, holding that its terms were not clear enough
to fix the extreme limits of the sector, he selected as boundary a
line which, to the west of the Orinoco, followed the rivers Casi-
quiare and Rio Negro referred to in the same Royal cédula.

Thus, in that arbitration, the King did not make use of the power
which was granted to him in 1886 to depart from the legal line and
to reach a decision “in equity”. He confined himself to seeking in
other documents the names or rivers which corresponded most
nearly to the general lines of the boundaries of the Royal titles.

The King rendered this arbitral award in 1891, and it is most
probable that Nicaragua and Honduras adopted the same formula
in the Treaty of 1806, in the conviction that the arbitrators would
not interpret this authorization otherwise than within the same
limits which the King of Spain had observed in 1891.

(c) Arbitration between Guatemala and Honduras

This arbitration was only agreed upon in 1930 and it shows that,
twenty-four years after the King of Spain’s Award in the dispute
between Honduras and Nicaragua, the countries of that part of
America insisted on arbitration on the basis of strict law, refused
to submit boundary questions to arbitration by equity, and accepted
compensations only on specific points and only if they had been
agreed upon by conciliation tribunals composed of representatives
of the parties to the dispute.

Article 5 of the agreement runs as follows:

“Art. 5.—The High Contracting Parties are agreed that the only
line that can be established, de jure, between their respective countries
is that of the uti possidetis of 1821. Consequently it is for the Tribunal
to determine this line. If the Tribunal finds that either Party has
during its subsequent development acquired beyond this line in-
terests which must be taken into consideration in establishing the
final frontier, it shall modify as it may consider suitable the line
of the uit possidetis of 1821 and shall fix such territorial or other
compensation as it may deem equitable for one Party to pay to
the other.”

This agreement insists on the rule of the wii possidetis as a
condition precedent, and does not authorize compensation except
for territories agrecd upon in advance in accordance with the «tz
possidetis as being “beyond this line”, which is the legal one.

This right was morcover only conferred upon a conciliation
tribunal of which the members were to be appointed by the two
countries, for as the Honduran delegate, Dr. Mariano Vasquez,
said at the meeting of 22 January I930 at Washington:

43
JUDGMENT 18 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 232

“An arbitration tribunal is not set up,.as is well known, to recon-
cile interests, nor to do what is desired by one of the parties to the
dispute, but to dispense justice where justice is due.

International questions of fundamental importance for countries,
such as territorial boundaries, can only with difficulty be the subject
of conciliation procedure and even sometimes of arbitration,
because the local political effect that an adverse award might have
is to be feared.”

(d) Arbitration between Costa Rica and Nicaragua

Here the only authorization given, and not to the arbitrator but
to a mixed commission, was to “depart slightly from the line laid
down so as to find a natural boundary” (Treaty of 1858, Art. 3),
a clause which, in the Treaty of 1886, was limited to one mile from
the legal line.

The King could not disregard this order of importance—this
hierarchy—of the different rules of Article II, since as M. Maura
stated in his Rejoinder submitted to the King in 1905:

“The hierarchy of proofs is mandatory, and no public document
of greater value can be in contradiction with the legal title.”

I cannot concur in the Court’s opinion which, while stating that
the King had to follow the whole of Article II, on the one hand
interprets paragraph 6 as an authorization conferred on the King
and not on the Mixed Commission, and on the other hand gives
this paragraph a scope which would not confine it to the power
to grant compensations but which would also confer on the arbi-
trator the right of settling the dispute by a compromise on the facts.

The authorization to grant compensations could not apply to
the arbitration by the King.

For the reasons developed by the Honduran delegate, Dr. Ma-
riano Vasquez, at Washington on 22 July 1930, the Latin Amer-
ican countries were not ready to accept local compensations, once
the legal line was fixed, unless they were agreed upon by mixed
commissions.

The King had all the powers laid down in the Gamez-Bonilla
Treaty, but on condition that that is understood to mean only
those powers which were laid down for the “arbitration” stage
and not those for the preliminary conciliation stage of the proceed-
ings. Articles II, VII and IX of the Treaty cannot be interpreted
as meaning that the King had to “meet” with anvone ‘at one of
the border towns’, that he was to record ‘in two special books”
the points of disagreement, to take “decisions by a majority vote”,
or to “begin his studies before the rainy season”.

Honduras itself rightly stated that not all the clauses of the
Gamez-Bonilla Treaty could be applicable to arbitration by the
King and that certain of them only concerned the arbitral tribunal.

44
JUDGMENT I8 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 233

With regard to Article VI, for example, the President of Honduras
in his telegram of 22 October to the Spanish Minister in Central
America said:

“The time-limits laid down in Article VI of the Boundaries
Treaty between Honduras and Nicaragua refer only to the Arbitral
Tribunal... Signed Bonilla” (Annex 5 to the Nicaraguan Rejoinder).

Just as the procedures laid down in Articles IL, VII and IX refer-
red to in the previous paragraph could only apply to the concilia-
tion procedure and Article VI to the Arbitral Tribunal, as Presi-
dent Bonilla states, in the same way the authorization laid down
in paragraph 6 f Article II could also not apply to the King.

But, even allowing that paragraph 6 could be applicable also
to the King, to compensate does not mean to conciliate. The
Dictionary of the Spanish Academy gives as the meaning of ‘‘com-
pensar’: to equalize in an opposite sense the effect of one thing
with another. Therefore, compensation can only be granted in
respect of territories that are equivalent. There is no kind of equi-
valence nor compensation as between the few hectares of the village
of Gracias a Dios and the whole northern basin of the Segovia
River, and the King made use of the power conferred by para-
graph 6 not to grant compensations but to settle the dispute as
mediator or arbitrator of conscience.

The interpretation of the relative importance of the rules laid
down in Article II can only be that uniformly accepted by all
the American countries which signed treaties containing similar
articles, by the arbitrators who were called upon to apply those
rules, and by the King himself in his Award of 1891 in the dispute
between Colombia and Venezuela, and consequently the King
exceeded his powers by the improper application of paragraph 6
of Article II of the Gamez-Bonilla Treaty.

(ii) The King committed essential errors related to the exceed-
ing of powers in the application of the uti possidetis juris rule

It is not for the Court to review the appreciation of the probative
force of the documents and other legal evidence submitted to the
arbitrator.

But there is a great difference between the evaluation of evidence
which lay within the discretionary power of the arbitrator and that
of essential error committed by the King when he asserted that
the Warrant which fixed the boundaries was one which in fact did
not fix any boundary.

Ours are neither appeal nor revision proceedings, and the Court
cannot discuss the choice which the King made of the Decree of
1791 to establish the rights of sovereignty of the two countries in
1821.

Nor can the Court discuss the King’s right to seek in previous
Decrees the boundaries of the provinces which did not figure in
the Decree which he had chosen.

45
JUDGMENT 18 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 234

But on the other hand we can hold prima facie that he committed
a manifest error or that he exceeded his powers in choosing, to
fix the boundaries which were lacking in the Decree of 1791, the
two Decrees of 1745 which expressly and formally stated that the
Alcaldia of Tegucigalpa was excluded from the boundaries referred
to in those decrees. |
The relevant text of the Decree of 1745 which, according to the
arbitrator, fixed the boundaries and which on the contrary excludes
the Alcaldia Mayor of Tegucigalpa is as follows: .
‘‘As regards the Alcaldia Mayor of Tegucigalpa ... you will refrain
(and take great pains to do so) from all meddling with the civil
affairs of that territory...” (Annex 54 to the Nicaraguan Counter-
Memorial.)

This manifest error had already been noted when the same decrees
were studied by a tribunal consisting of Charles Evans Hughes,
Luis Castro Urefia and Emilio Bello, in the arbitration between
Honduras and Guatemala, and by the Spanish Council of State
which declared in its Opinion:

“It may be considered as certain that the Royal Decrees of 1745
did not in any way change the boundaries of Nicaragua and Hon-
duras.”

The King thus committed an essential error involving an excess
of jurisdiction in taking as proof of a title of sovereignty a Decree
which the Spanish Council of State had itself acknowledged to
fix no boundary and which, as we have seen, excluded the Alcaldia
of Tegucigalpa.

(iii) The King exceeded his powers in recognizing juridical value

to de facto possession established by acts of jurisdiction

Paragraph 4 of Article II of the Gamez-Bonilla Treaty precluded
the recognition of “juridical value to de facto possession’.

The Spanish Council of State explained in its Opinion that the
Commission appointed by the King had decided, in case of lack
of proof of ownership, to take into consideration acts of jurisdic-
tion as being complementary to the study of the royal provisions.

But acts of jurisdiction could not be used except as proofs of
possession, and came under the formal prohibition in paragraph 4
of Article II. And it is acts of possession which the King allows
when, in recitals 14 and 15, he refers to the “expanding influence
of Nicaragua’”’ and to the ‘‘ephemeral” nature of the extension of
Honduran sovereignty.

This part of the Award is, prima facie, contrary to the formal
prohibition in paragraph 4 of Article II of the Treaty.

(iv) Absence of reasons

The majority of the Court holds that an examination of the
Award shows that it contains ample reasoning and explanations
in support of its conclusions.

46
JUDGMENT 18 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 235

The greater part of the “recitals’’ in the Award merely indicate
one by one the arguments which were put forward by each of the
Parties.

Inadequacy of reasons is quite as serious as lack of reasons. In
the present case, if the King had not found sufficient reasons to
make a decision on the basis of law, he should have declined to
promulgate his Award, as he did in 1910 in the case between Ecuador
and Peru, instead of affirming in recital 21 that his decision “‘best
answered the purpose by reasons of historical right, of equity and
of a geographical nature...” but without indicating either why
or how.

This inadequacy of reasons is not in itself sufficient to entail
the nullity of the Award, but it confirms the exceeding of juris-
diction dealt with in the foregoing paragraphs and the error com-
mitted by the King in rejecting the study of the other Royal titles
submitted to him by the Parties.

(v) Obscurities and contradictions in the Award

Nicaragua has asked the Court to find that, even if it was valid,
the Award was not capable of execution by reason of its omissions,
contradictions and obscurities.

It is difficult to define which is the thalweg, the navigable arm or
the principal mouth of rivers which, on land still in process of
formation, often change their course. A court cannot give opinions
on questions which only engineers or technicians can decide. Like
the Court, I do “not consider that the Award is incapable of exe-
cution’’, since it is for mixed commissions, or for any other authority
to whom the Parties might entrust the drawing of the boundary
line, to settle problems which omissions, contradictions or obscuri-
ties in the Award present.

II. Bearing of acquiescences or inaction on the part of Nicaragua from
1906 to 1gI2

With regard to Nicaragua’s inaction between the years 1906 and
1912, I would make the following observations:

(a) As explained in the section on the legal considerations, the
inaction of any American State in respect of appeal for the nullity
of an award could only correspond to the state of evolution of
international law at that period and in that region.

(b) If even the Hague Conference of 1907, while accepting the
principle of the nullity of awards, refrained from endorsing it
because it was not in a position to designate an authority respons-
ible for dealing with the appeal, it is natural that at that period
_ Nicaragua should have confined herself to considering only the

possibility of obtaining explanations or at most a revision by the
arbitrator himself.

4
JUDGMENT 18 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 236

(c) As soon as the Nicaraguan Agent received the text of the
Award, he submitted a note of protest, dated 25 December 1906,
a note which the Spanish Government endeavoured to persuade
him to withdraw.

In the months following, Nicaragua sought to bring an appeal so
as to obtain either explanations or a revision.

The rules admitted today only allow of revision in the case of the
discovery of a new fact; but long before the discussions as to allow-
ing this means of recourse in Europe, and before 1907, Brazil,
Argentina, Paraguay, Uruguay, Bolivia, Peru, Chile and later
Colombia and Ecuador signed general bilateral arbitration treaties
which recognized the right of revision of the Award by the same
arbitrator in the case of “errors of fact resulting from the proceed-
ings’. This concept of “‘revision” is certainly different from the
one accepted today, but in 1906 and 1907 it was a form of appeal
accepted by all the countries in the foregoing list. It is therefore
understandable that, at that period, Nicaragua only thought of
proposing that form of appeal. A too favourable circumstance
obliged her however, as a matter of tact and scruple, not to make
any such appeal in the earlier years: M. Maura, who was Nicaragua’s
Counsel during the arbitration proceedings, became Prime Minister
of Spain shortly after the Award of 23 December 1906, and it
would have been neither proper nor admissible, as Minister Gamez
explained, to ask her own Counsel, now become Prime Minister,
to suggest to the King that he should revise the Award.

Other historical facts also show that Nicaragua and Honduras
between 1906 and 1912 believed in good faith that the problem
of the carrying out of the Award would not even arise.

It was only in 1911 that the question of the carrying out of the
Award was raised for the first time by Honduras and that Nicaragua
declared that it was a nullity and later proposed arbitration to
decide as to its validity.

The theory of estoppel cannot be invoked against Nicaragua
because she had not brought a nullity appeal between 1906 and
1912, unless it is also invoked against Honduras who, during the
same period, seemed to have renounced requiring the carrying
out of the Award. It cannot be said that Nicaragua’s attitude
between 1906 and 1912 caused Honduras to believe that the Award
was accepted.

(d) From 1912 to 1957 Nicaragua continually proposed to submit
the verification of the validity of the King’s Award to fresh arbi-
tration. In 1914 she proposed arbitration by the President of the
United States of America. In 1918 she accepted the proposal
made by President Bertrand of Honduras to submit the question
to President Wilson, but Honduras withdrew her offer. Nicaragua
accepted but Honduras refused to accept the arbitration proposals
put forward by the Department of State of the United States of
America in 1921 and 1923 and the proposal put forward by Nica-

48
JUDGMENT 18 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 237

ragua to the commission of mediation of Costa Rica, the United
States of America and Venezuela in 1937-1938. The Irias-Ulloa
Protocol which, on the other hand, accepted the carrying out of
the Award, was signed in 1931 by the Nicaraguan Government,
but was not ratified by the Nicaraguan Parliament. The verification
of the validity of the Award could not be submitted to the decision
of an international court before 1957 because Honduras maintained
that Article VI of the Pact of Bogota did not allow the Court to
deal with questions “already settled” by arbitral awards within
the framework of compulsory jurisdiction. It was not until 1957
that through the intervention of the Organization of American
States Honduras accepted the Court’s jurisdiction. All these facts
have been mentioned during the oral proceedings by the Nicaraguan
Agent without Honduras having raised any objections.

As to the acquiescences relied upon by the Court, they do not
constitute a formal renunciation of the right to challenge the validity
of the Award.

(a) President Zelaya’s telegram of 25 December to the President
of Honduras does not fulfil the requirements of proof of renuncia-
tion of a nullity appeal.

(b) The note sent by Minister Gamez to the Spanish Chargé
d’affaires on 9 January 1907, as he himself explained to Minister
Medina on the twenty-first of the same month, was a mere acknow-
ledgment and conventional expression of respectful thanks to
the King, since M. Medina had already on 25 December submitted
his note of protest direct to the Minister of State at Madrid.

(c) The publication of the complete text of the Award in the
Nicaraguan Official Journal on 28 January 1907 cannot be upheld
as an argument, since publications given by way of information
in the newspapers, even if they are official, have never yet been
considered as proofs of engagements on the part of States.

(d) The declaration made by the President of Nicaragua to the
Nicaraguan Assembly on 1 December 1907 cannot be held as a
proof of renunciation of bringing an appeal against the Award.
On the contrary it implies such an appeal, since it ends with the
following sentence:

“it has instructed Minister Crisanto Medina to request a clarifi-
cation of a few points in this decision which are obscure and even
contradictory...”.

(e) The report to the National Assembly of 26 December 1906
could only have constituted a proof of renunciation of disputing
the validity of the Award if the Government had expressly so
stated and the Assembly had approved that renunciation. But on
the contrary, in this report it is said:

49
JUDGMENT 18 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUIN) 238

“Unfortunately, in this arbitral Award, as in so many similar
cases, so-called political expediency, that is to say the very simple
device of bisecting the dispute in order to prove to the Parties that
the arbitrator has the same consideration and esteem for both of
them, has prevailed over legal arguments and historical bases.”

This report thus takes note of the exceeding of jurisdiction in the
Award and cannot be considered as a renunciation of contesting it.

(f) The approval given by the Nicaraguan Legislative Assembly
on 14 January 1908 of ‘‘the acts of the executive power in the
field of foreign affairs between 1 December 1905 and 26 December
1907” has never legally existed. The photostatic copy of the Off-
cial Journal submitted to the Court shows that the Foreign Affairs
Committee of the Assembly submitted a draft resolution in that
- sense, a draft which only had a first reading, but which was never
discussed in a-second reading nor definitively approved. If the
proposal had been approved, then it would inevitably also cover
the note of protest from Minister Medina of 25 December 1906,
the instructions sent to M. Medina by the notes of 1 February 1907
from President Zelaya and of 21 February and 14 October from
Minister Gamez, instructing him to ask for “explanations” and,
if possible, even the “revision” (veforma) of the Award.

(g) As Minister of the Interior, General Moncada neither was
nor could be the competent organ to pledge his country’s respons-
ibility in the matter of a nullity appeal against an arbitral award,
and his telegram of 23 March 1911 cannot therefore be held as
proof of renunciation of a nullity appeal.

(h) The Note of Honduras dated 25 April 1911, and signed by
the Foreign Minister, cannot in any way commit Nicaragua. The
text of the Nicaraguan reply to that Note might possibly have
committed Nicaragua, but in fact the only reply was a note dated
27 November 1911 by M. Chamorro to the Honduran Chargé
d’affaires, M. Médal, in which he confined himself to stating that
he had not concluded his study of the question.

(t) The information sent on 8 September 1911 by the Honduran
Chargé d’affaires, M. Médal, to his Minister regarding his visit
to M. Chamorro was not a Note coming from Nicaragua but from
a Honduran official, and cannot therefore be a proof serving to
show Nicaragua’s renunciation of disputing the Award.

There is thus, in these documents or declarations, no proof ot
renunciation on the part of Nicaragua of disputing the validity
of the Award, the intrinsic defects of which in my opinion entail
its nullity.

Certain of these declarations might indicate the intention to
accept the Award but none of them can be adopted as proof of

50
JUDGMENT 18 XI 60 (DISS. OPIN. JUDGE URRUTIA HOLGUI: 239

“an undertaking by a State” to renounce its right to challeng: the
validity of the Award within the meaning required by the rules
of law set out in Chapter I.

For the foregoing reasons, I arrive at the conclusion that the
intrinsic defects studied in Chapter IV entail the nullity of the
arbitral Award made by the King of Spain on 23 December 1906.

(Signed) Urrutia HOLGUIN.

51