Arbitral Award Made by the King of Spain on 23 December 1906 - Judgment

I.C.J. CommuniquéNo, 60/31
(unof ficial)

The fo-llowing information from the' Zegistry of the International
court of Justice is communicated to the press:

The Internatiorial' Court. of Justice today (18 November 1960)
delivered its Judgment in the case concerniiig the Arbitral Award made
by the King of Spain on 23 Decmber 1906, rvith regard to the
determination of the frontier between Honduras and Micaragua.

~he proceedings in this case iue're institutcd by ond dur aga'.st
Nicaragua by.an Application filed on 1 ~ul~ 1958. Honduras asked the
Court to. adjudge ana declare that Wicaragua bras under an.obligation
to give 'effect to the Award; Nicaragua asked it to adjudge and declare
.
thatthe,decision given bythe King of Spain did.notpossess the
character of a binding arbitral award and that it'was in any case
incapable of execution. By fourteen votes to one, the Court held
that the iiirard was valid and binding and that Nicaragua was under an
obligation to give effect to it.

Judge 14oreno Quintana appended to the. judgment a declaration;
Judge Sir Percy Spender appeiided a separate-opinion and M. Urrutia
Holgdn, Judge ad hoc, a dissenting o?hion.

' 'in its ~udim~nt, the Court found that Honduras and Nicaragua Gd
on '7October 1894 concluded a treaty, rsferred to as the Ghez-Boniïla
Treaty, under which a 16xed Boundary Comission was entrusted with the
duty of de-rcating the dividing line betiareen the two countries
(krticle 1), adhering, in so doing, to certain rules (krticle II).
The points not settled by the Comniission were to be submitted to an
arbitral tribunal composed of one representative of each of the two
countries, and of one member of the Diplomatic Corps -a~credited to ,
Guatemala to be elected by the first two (~rticle III). In case the
diplornatic representative should decline the appointinent, another
election,~ra~s to take place; vihen the membership of the Diplomatic
Corps luas exhausted, any for6ign or Central American public figure

might be clected? and, should that not be possible, the points'in
controversy Gere to be submitted to the Cavernment of Spain or,
failing that, to any South imerican goverinment (Article v). The
arbitral decision wris to be held as a pcrfect, binding and perpe-thal
treaty, not subject to appeal (Article vII) . Finaliy, the Treaty
was to be suljrxitted to constitutional ratifications (Article VIII)
and to reinain in force for a period of ten,years (krhicle XI),

The 1fixed corrimission succeeded in fixing the'boundary fmm the
Pacific Coast to the Portillo de'Teotecacinte but, with regard to the
frontier from that point to.the Atlantic Coast, it could only record.
its disagreement (1900-1901). With regard to thzt latter section
of the bounaary, the King of Spain on 23 December 1906 handed dow-h . .-..
an arbitral award the operative clause of which fixed the common
boundary point on the Atlantic Coast as the mouth of the principal
arm of the ~iver Segovia or Coco, between Hara and the island of

San Pio v~here Cape Gracias a Dios is situated; from that poirit, the

frontier ..,.frontler was to follow the thalweg of the .Segovia or Coco upstream

until it reached the place of its confluence trith the Poteca or Bodega
continuing along the thalweg of' the Poteca or Bodega until the latter
joined the Guineo or i\Jamasli to. terminate at the Portillo de Teotecacinte,
the .-itio' of the same name remaining vcithin the jurisdiction of
Nicaragua.

The Foreign fiister of Nicaragua, in a &lote dated 19 March 1932,
had challenged the v~lidity and binding character of the ~iward. This
had given rise to a dispute between the parties. After Unsuccessful
attempts at settlement by direct negotiation or mediation, the
Organization of American States had been led to deal with the dispute

v~hich Honduras and Iiicaragua had undertaken to submit to the Court
under an agreement reached at Washington on 21 July 1957.

Honduras aileged that there Iras a presumption in favour of the
binding character of the iivrard as it presented al1 the outward
appearances of regularity and had been made after the ?arties had had

every opgortunity to put their respective cases bofore the arbitrator;
it contended that the burden lay upon Nicaragua to rebut that
presumption by furnishing proof that the Amrd was invalid.
Nicaragua contended that, as Honduras relied upon the kviard, it Plas
under an obligation to prove that the person giving the decision had
been invested >rith the powers of an arbitrator, and it argued that
the King of Spain had not been so invested.

In the first place, i4icaragua'hnd argued that the requirements
of Articles III and V of the Gamez-Bonilla Treaty had not been complied
with in the designation of the King of Spain as arbitrator. The
record showed that the trm national arbitrators had' designated the
;
Mexican Chargé diaffaires in Central kmerica (1899), and later the
Mexican Minister to Central lunerica' (1902) as the third member of the
arbitral tribunal but that thèse two had in &rn left Guatemala,
Thereafter, on 2 October 1904, the two national arbitrators had met
with the Spanish sknister to Central America whom they appointèd I1to be
the chairman of a meeting preliminary to the arbitrationl', and, "by
common consent and the requirements of Articles III and IV of the
~amez-Bonilia Treaty having previously beeli complied with'l, the Kirg
of Spain had been designated as arbitrator. The Court concluded that
the requirements of the G&nez-Bonilla Treaty as bterpreted by the two
national nr'oitrators had been complied with. Subsequently the

Presidents of Honduras and of Nicaragua expressed their satisfaction at
the designation of the King of Spain (6 and 7 October 1904), the
acceptance of the latter was co?nnunicated to the tvio countries on
17 October 1904 and the ~o~eign'$~inister of Micaragpa. expressed his
gratitude to the Spanish mister of State fn a Rote of 21 December 1904.
In these circumstances the Court was unable to.hold that the designation
of the King of Spain as arbitrator was invalid.

In the second place, Nicaragya had contended that the Gsmez-
Bonilla Treaty had lapsed before the king of Spain agreed to act-as
arbitrator (17 October 1904); it nrgued that the Treaty had come .n.to

effect ...,I b"
W. J'

@ fir
T.
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*
effbot an the date on iuhich it was signed (7 October 1894) and that by
~ virtue of Article XE it had lairiseon 7 October 1904. The reply of
Honduras was that the Tsaaty Iwd not come into cffect unttl the

exchange of ratifications (24 aeccmber 1896) and that it had
cohsequently expired on 24 Decerfber 1906, There ~ms no express
provision'in the Treaty 16th regard to the date of its entry inta
force but, taking into coinsideration its provisions r.rithregard to
the exchange of rztifications, Ghe Court was of the view 'chatthe
intention of the parties had been th~t it should corneinto force
on the date of exchange of ratifications, It fuund itdifficult
to believe that the parties had had Ln rrrinan interpretation of the
Treaty according to whichit wrtsdue tu expire five days after
agreement was reached on the designation of the King of Spain as
ar'eitrator (2 Octaber 1904). If this were not the case, when
canfronted ~5th the suggestion of the Spanish Zfinister to Central
kmerica on 21 and 24 October 1904 that the period of the Treaty
might 'ae extendcd, the two Govemments i~ould either have taken

+runediate appropriate measures for its renewal or extensiono ,r they
would have termimted aL1 further proceedings in respect of the
arbitration, Tho Court therefore cbncluded that the Engf s
e eccepiance of his desiqation as arbi'crator had been weU withln 'the
currency of the Treaty,

Fimlly, the Court considered that, havi-ng regnd to the fact
that the designatio of the Kingof Spin tas freely' agreed to
Nicarzgua, tht no objection lias taken by Hicarapz %O his
jurisdictian eikher on the ground of irregularity 'inhis dcsignation
ok on the ground that the Trezty had lapsed, ahd that iJicaragcia had
fully pnrticipated in the arbitral proceedingsi ,t Irasno hnger open
ta Nicaragua to rely on sithsr of those contentions as fwnishing a
ground for the nullity of the Amrd.

W

,Y, W

a Nicaragua had urged thatevan under those conditions the Xward
tqasa nuUity and Honduras had ans~rered thatthe conduct and attitude
of Nicaragua shor.red that it accepted the Abfard as binding and that fri
consecpence of that acceptanceand of its fzilure to raise any
objectionfor a nuiberof years, it wâs no longes open to Nicaraw
to question the mEdity of the A~mrd,

The Co& recalled in the first place that, on 25 December lqOb,
5he Presidentof Nicaragua had sent a teleg~amto the Pmslden.t of
Honduras In lwhich he congratdated him on having won the day and
obsemed that the i~ksomequestionof the delimitation of the
fsmtier had been resalved in a satisfactary mariner, Nicaragua had
urgedthat the Preaident was not then axarareof the actual. tems of
the Award, but the Court pointed out th&, frm a telegram of the
FWster of Nicaragua in Piadrid of 24 Decemlsel:1906, he had leamed
the ccurse llrhich the boundaiy linewas to follow. h any event,
the full tems of the Award must have become availabl ea the
IJicaraguan Governiment fairlyscon since the Awardwas published in
its Officia1 Gazette on 28 Januaxy 1907, Even thereafter, the
attitude ofNicaragua tmards the Award had continued to be one of
I

acceptance ..,,acçeptance, subject to a desire to seek clarificatfon of certain
pmints which would facilitate the carSying intri effect of the Award

(the message ef'the President af Ntcaragua to the N~ttlonal Legislative
Assembly of 1 December 1907, the Foreign P5nister1 s report to the
National Legisfative Assembly of 26 December 1907, the decree of the
Nationa legislativ Acssemblyof 14 January 1908, etc. ), No request
for clarification had in fact been subrritted to the King of Spain, and
it was nct until 19 March 1912 that the Foreign I6snister of Nicaragua
for the first tjme stated that the Arbitral Award vsasnot "a clear,
re&y valid,er'fec'cive and cornpuZsory A~xrard"

Tn the judgmenl of the Court, Ntcaragua, by express declaration

and by conduct in conformity with Micle VI1 of the G-z-BenlLla
Treaty, had recognized the kward as bînding and It was no longer open
to Nicaragua to gelhack upon that recognition. Nicaragua'fs aLLure
to raiseany question with regard to the validi-by of the Award for
several years after it had becm known to it confimd that
conclusion, Rowever, even if there had not been repeated acts of
recognition and even if its cornplaints had been put fovward in proper
time, the Award would stiil ha~e to be recognized as valid.
Nicaragua'fs irst carplaint was that the King of Spain had exceeded
his jurisdiction by reason of non-observance of the miles laid dchn 5n
Article II of the Ghes-Banilla Treaty but the Court, having çamfu3ly

considered the allcgations of Nicaragua ,2s unable to arrive at the
conclusion 'chat thearbitra otr had gone beyond the authoriky c onferrcd
upen him, Nicaragua had also contended that the Awardvras a nullity
by reason of essential esror, but the Court held that the evaluatim
of documents and of other evidence appertaineci to the discretionary
pswer cf the arbitrator'an w as not open triquestion. The last
grcund of nwity relied upcn had been the alleged lack or lnadequacy
af reasons in support of the conclusions arrived at by the arbitrator
but, in the opiniçn rilthe Court, thatground was wlthout foimdatlcn.

It had furthex bcen argwd by Nicaraguathat the Awardwas not ul

any case capable of executicn by reason af its omissions, contradictions
and obscurities: Nica~agua had contende dhat the mouth of a river was
not a fixed pcint and codd not serve as a cornmon boundary between two
States and thatvital quzstians of navigation rights wçiuld bo in~olved;
it kad fusther argued that the delimitation in the operative clause.
left, a gap of a few kilmetres frorn the junction of the Poteca or
Bodega. t&h the Guineo or ~amaslc up to the Porti IlO de Teotecacinte,
In view of the clear directive Ln the operative clause and the
explanatfa~ln support of it, the Court did not consider that the
Amrd was incapable of execukion.

For these Rasons the Coud arrived at the conclusion stated

above,

The Hague, 18 Nwember 1960