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Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibiuty

Published online by Cambridge University Press:  27 February 2017

David J. Bederman
David J. Bederman*
Affiliation:
Iran-United States Claims Tribunal
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Extract

On July 28, 1986, the Republic of Nicaragua filed an application instituting proceedings against the Republic of Honduras in the International Court of Justice. Nicaragua alleged that Honduras had allowed armed bands, known as contras, to operate from its territory to the detriment of Nicaraguan sovereignty, that Honduran military forces had directly participated in attacks on Nicaragua and that the Government of Honduras had given material aid and logistical support to the rebels. Nicaragua requested that the Court declare the acts and omissions of Honduras to be violations of international law and order it to desist from all such activities and to make reparations to Nicaragua. Honduras objected to the jurisdiction of the Court and to the admissibility of the Application. The parties subsequently agreed that the Court should first decide these questions before proceeding to the merits. Relying on the Pact of Bogotá for its jurisdictional rationale, the Court unanimously held: that it had jurisdiction and that the Application could be entertained.

Keywords

International Court of Justicejurisdiction and admissibilityPact of Bogotá
Type
International Decisions
Information
American Journal of International Law , Volume 83 , Issue 2 , April 1989 , pp. 353 - 357
Copyright
Copyright © American Society of International Law 1989

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References

1 1988 ICJ REP. 69, 78–82, paras. 21–25. For the text of the Honduran declaration, see 1959–1960 ICJ Y.B. 241. This was modified, with the intent of frustrating jurisdiction over the subject matter of this case, by a later declaration. See 1985–1986 id. at 71. Nicaragua relied on its 1929 adherence to the jurisdiction of the Permanent Court of International Justice, a declaration that was previously found valid in Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 441 (Judgment of Nov. 20).

2 American Treaty on Pacific Settlement, Apr. 30, 1948, 30 UNTS 55. The United States signed, but did not ratify, this Treaty.

3 1988 ICJ Rep. at 82–83, paras. 29–31; see supra note 1.

4 The United States made a contemporary reservation when it signed the Pact, and El Salvador renounced the Pact in 1973. Id. at 84, 86–88, paras. 32, 34, 38–40.

5 The Judgment discussed those provisions of the Pact which negated the Court's jurisdiction over matters within the domestic jurisdiction of the parties, or over matters already settled by negotiation, arbitration or treaty. Id. at 84–85, para. 35 (citing Arts. 5 and 6 of the Pact, supra note 2).

6 Id. at 89, para. 46.

7 Id. at 91, para. 51.

8 Id., para. 52.

9 Id. at 91–92, para. 54.

10 Id. at 94–99, paras. 62–76.

11 Id. at 99–105, paras. 77–93. The Court also held that “elementary considerations of good faith” could not prevent Nicaragua from proceeding with the case. See id. at 105, para. 94.

12 Apr. 28, 1949, 71 UNTS 101, Art. 17.

13 Apr. 29, 1957, 320 UNTS 243, Art. 1.

14 Separate Opinion of Judge Oda, 1988 ICJ Rep. at 109, 124–25, para. 15.

15 Separate Opinion of Judge Schwebel, 1988 ICJ Rep. at 126, 130–32 [hereinafter Schwebel opinion].

16 1988 ICJ Rep. at 82, para. 27.

17 Schwebel opinion, supra note 15, at 126 (“Believing as I do that jurisdiction in this case can only be founded on the Pact of Bogotá –”).

18 1984 ICJ Rep. at 415–21.

19 1988 ICJ Rep at 91, para. 52.

20 See, e.g., Central American Summit Talks Imperiled, Int'l Herald Tribune, Dec. 24–25, 1988, at 5, col. 3 (quoting the Honduran Foreign Minister as saying, “This ruling affects and interferes with the political process launched by the five Central American presidents because it establishes a judicial precedent totally incompatible with peace negotiations”).