Counter-memorial of Nicaragua (Jurisdiction and Admissibility)

COUNTER-MEMORIALOFNICARAGUA
(JURISDICTIOAND ADMISSIBILITY) Volume 1

INTRODUCTION

I Uic.ir.ipua iiiiti:~i~th13~irocccJiiie tiGi1n.t lI<iriJur~i h! filin11,,\ppli.
c3tioii \iith lhrCtiuri oii2h July I'JYIiTlic ,\pl)lic:iii~,cl, fairtliitars.<i'i<,l.i-
ti.>nsoii the miri .BIIl<indurlis01 11,Icc.il~~hlicliii~~iusilcr thc iïi.irlcri uihc
United ~atiUns and the ~rganizatioRof ~merican States and under general
principles of international law. Iri particular, il recites that continuously since

1979,Honduras has violated ils international legal obligations to Nicaragua: by
oermittine thousands of mercenaries to establish and maintain militarv bases
and ~the~facilities in~onduran territory for the purpose of carrying oui armed
attacks in and against Nicaragua; by providing vital intelligence and logistical
sumort to facilsate the mercenariés' attackson ~icaraeüa: bv activeiv Dar-
&pating, through its own armed forces, in armed aftackS stagéd hy thémer-
cenaries inside Nicaragua; and tiy engaging in repeated military manŒuvres
with the armed forces of the United States, near the Nicaraguan border, for
the purpose of intimidating Nicaragua and intervening in Nicaragua's inter-
na1 affairs.
2. The jurisdiction of the Court was invoked on the basis of declarations of
Nicaragua and Honduras under Article 36 of the Statute of the Court accept-

ing the compulsory jurisdiction of the Court. and on the basis of Article
XXXI of the American Treaty on Pacific Settlemeiit (Pact of Bogota), to
which both Nicaraeua and Honduras are oarties.
3. Nicaragua asced the Court to adjudie Honduras to be in violation of its
conventional and custoniary international legal obligations to Nicaragua no1
to use force or the threat of force aeainst ~iCaragu< and no1 to interiene in

andio determine thc reparations owing to Nicaragua in consequence of such
transgressions. Nicaragua reserved the right to present a request that the
Court indicate interim measures of protection.

4. On 29 August 1986, the Minister of Foreign Relations of the Gcivern-
ment of Honduras advised the President of the Court that Honduras wishes
to assert objections to the jurisdiction of the Court and to the admissibility of
Nicaragua's Application. Accordingly, on 22 October 1986, the Court sche-
duled the submission of writtçn pleadings on the questions of the Court's
jurisdiction and the Application's admissibility as follows: the Mçrriorial of
Honduras was to be submitted by 23 February 1987, and the Counter-Memo-
rial of Nicaragua was to be submitted by 23 June 1987.
5. It is the position of Nicaragua that the objections of Honduras to the
jurisdiction of the Court and to the admissibility of the Application, set forth
in the Memorial of 23 February 1987, are wholly without foundation.
6. Part 1 of this Counter-Memorial demonstrates that the Court has ju-

risdiction in this case under Article 36 of the Statutc of the Court because
the reservations to the Honduran declaration under Article 36 (2). filed on
26 May 1986, are invalid and have no legal effect.282 BORDER AND TRANSBORDER ARMED ACTIONS

7. Part II demonstrates that Article XXXI of the Pact of Bogoti by its
exoress terms. hv the contemooraneous understandine of the ~arties and hv the
wLight of exie; commentab, provides a separate and indépendent ha& of
iurisdiction for the Court in this case; contrary to the position advocated hy
Honduras, there is no requirement that the conciliation Procedure descrihed in
the Pact be invoked, or that the parties be unable to agree upon arbitration,
prior to recourse to the Court. Part II further demonstrates that the purported
reservations to the Pact oresented bv Honduras 36 vears after ratifving the
F'.+ct.h,i\c nu lc$3l ~'lf~ct.l'.~Il ,413~dci~~u~~slratc t~,ii: . -
h i\it?r \r\in yr:lr.01 iiii~uc:~~~iuJlipl<ini;riicciii>ri1,)r~,\<ili.cihc i\\iicï
raiscd iithe ,\~pli.,iiion. it i\ iil.th.iiihcw isc~r.>h.1t.cmit h2c.n~:ap:ihlc $if

resolution by dcrect negotiatibn. It is equally plain that, under the-~act of
Bogota, a State may not frustrate another State's right to recur to the Court
merely by stating, contrary to the weight of the evidence (and contrary to its
own behaviour) that "in its opinion" the dispute is capable of settlement by
direct negotiation.
9. The multilateral negotiations known popularly as the Contadora pro-
cess do not constitute a "special procedure" under Article 11of the Pact of
Bo~~-A.a.d therefore do not ~reclude Nicaraeua from initiatine other oacific
procedures for resolution of tie issues raised the ~~~licatio< including re-
course to the Court. Moreover, the bilateral legal dispute between Nicaragua
and Honduras identified in the Application not-even addressed by the
Contadora process, which is instead a political solution of a series of regional
controversies.
10. Part III demonstrates that even if, argrrendo,the new reservations pre-
sented hy Honduras to its declaration under Article 36 (2) of the Statute of
the Court and the Pact of Bogoti were legally valid, they do not apply in the

circumstances of this case and cannot serve to deprive the Court of jurisdic-
tiou either under Article 36 (2) of the Statutr or Article XXXI of the Pact.
II. Part IV demonstrates that the Application is fully admissible, and in
particular that il is sufficiently specific under the rules of the Court and prior
d~~~ ~ons of the Cou~ ~ ~ ~ that the claims oresen.cd are leeal clai-s fullv
capable of judicial resolution. Indeed, Nicaragua's Iegal claims are similar in
nature to the ones the Court already found iusticiable, and resolved, in the
Mililary and I'aramilitary Activities in and akuinst Nicaragrra(Nicaragua v.
United Sfafes of America), Merits, Judgmenl, I.C.J. Reports 1986. The first
part of the Honduras Memorial of 23 February 1987 (hereafter Memorial),
constituting more than one-third of the Memorial, is addressed neither to the
jurisdiction of the Court nor the admissibility of the Application. Rather, this
part, entitled "The Background of the Dispute", addresses the merits of the
Application and of the claims set forth therein. Indeed, this part sets forth
various arguments (including "self-defence") that Honduras apparently in-
tends to assert at the merits phase of this case in response to Nicaragua's

claims, should the Court decide that it has jurisdiction and that the Applica-
tion is admissible.
12. While Nicaragua considers it proper to await the merits phase of the
case before presenting ils evidence and arguments addressed to the merits of
its claims, and the defences asserted in response thereto, the incompleteness
of the "Background of the Dispute" presented in the Honduras Memorial
makes it appropriate for Nicaragua to make certain preliminary remarks at
this phase in order that the Court have the henefit of the views of hoth parties
as to the nature of the present dispute.
13. The "Background of the Dispute" set forth in Part 1of the Honduras COUNTER-MEMORIAL OF NICARAGUA 283

Memorial consists of two chapters. The first, entitled "The Present Dispute
as Part of the General Conflict in Central America", purports to describe the
factualcontext of the dispute between Nicaragua and Honduras, including, as
related in Section 1 of this chaoter. "the cause of the conflict in Central
America". ~he incompleteness i;fthis purported statement of the relevant
facts is best shown by the omission of any reference whatsoever to the mer-
cenary forces commonly known as the "contrns". Nowhere in this 44-page
exegesis on the facts related Io the present dispute are the contras even men-
tioned. From reading the Honduras Memorial one would be surprised to

learn that the contras exist. let alone that for more than six vears - and con-
tinuing to the present day - as many as 10,000of them haGe used Honduras
as a base for launching military and paramilitary attacks in and against Nica-
ragua.
14. Honduras's role as a base of operations for the contras is a matter of
public knowledge. It is even described in the dictionary. The 1987 edition of
the Dictionary oflnternutional Relations Terms, an official publication of the
United States Department of State, defines the word "contrus" as follows:

"Shoriened form of the word 'contrarevolucionarios' (counterrevo-
lutionaries). the term the Sandinista reeime in Nicaraeua uses for the
gucrrilld h~rics iighrinr: 4,:xnit ihcm. Thc (,>iitr;i> ciimlirisr. Icirnicr
inenil>cr, OI ~hc SC~I~~,II I.~II,DII.I u:$rtl.d13>1Jcntripht-\\ing i,,riii~~~
S~IIJIIIISI~I.I. J tlic hlijk~io InJi.in iiiiiiorit\,:giitltc~sclorccs <I~L.-
rates indep&dently. The Contras operatefkrn busesin Honduras and
Costa Rico and receivepolitical and material supportfrom the United

States. There have been recurrent armed clashes between Sandinista
government troops and the rebels since March 1982." (Ann. 1,empbasis
added, footnoces omitted.)
A footnote to the italicized sentence says:

"The Reagan Administration has backed the Contras by various
means, including joint manceuvers by the US with the Honduran Army,
fleet exercises off the Nicaraguan Coast, the secret mining of Nicara-
guan harbors, and military supplies . . ."

15. In the Military and Paramilitnry Acriviriesin and against Niciiragua
(Nicaragua v. U~iitedStatesof America) Merits, Judgment,I.C.J. Reports1986,
the Court found that the United States had trained, armed, equipped, financed
and supplied the contra forces, and that these actions were in violation of cus-
tomary international law. Just as the contras could not have carried out attacks
in and against Nicaragua without being trained, armed.equipped, financed and
supplied from the United States, they could not have carried out these attacks
-and would not be able to carry them out today - without military encamp-
ments, training facilities, command centres, intelligence posts, and special air-

strips and planes for transporting supplies to contra combatants - al1located
and maintained on Honduran territory. The unrestricted use of Honduran ter-
ritory, particularly that part of il icloseto the frontier with Nicaragua, has been
and remains vital to al1military and paramilitary operations by the contras.
16. Senior Honduran officiais have reeularlv made ~ublic statements ac-

.
mentslnclude ihe following:

- On 17 April 1986, President JoséAzcona Hoyo openly acknowledged
that contra forces operate from Honduras, stating that "They come and they284 BORDER AND TRANSBORDER ARMED ACTIONS

go. 1believe tliat near the border they have camps, temporary camps." Presi-
dent Azcona added that "Honduras will not devote resources to guard the
backs of the Sandinistas". (New York Times, 18 April 1986 (Ann. 2).)
- In a radio interview broadcast on 10Decemher 1986, President Azcona
again admittcd not only that the contras use Honduran territory to attack
Nicaragua, but also that the Honduran Government was making no effort to
prevent such use of its territory. President Azcona stated that "the contras
have been going in and out of Honduras and Nicaragua", and that "[tlhey
have been assembled to oust a government". President Azcona also admitted

that "one of Our concerns" is that the contras might be defeated and thus
trapped in Honduras. President Azcona acknowledged that he had expressed
that concern to the United States. However. when asked whether Honduras
was pressing the United States ta order the contras to leave Honduras, Presi-
dent Azcona replied: "No. We are not exerting pressure." (Transcript of
slatements broadcast on Tegucigalpa Radio America 1854 GMT 10 Decem-
ber 1986 (translatioii) (Ann. 3, pp. 385-386, infra); UPI 11 December 1986
(Ann. 4).)
17. -In another interview broadcast in April 1987, President Azcona en-
gaged in the following colloquy with a reporter:

"[Reporter] MI. President, Iwo National Congress deputies have
said that you should go to Capire, on thc Nicaraguan border, to see for
yourself that contras are still there.

[Azcona] . . .There possibly are some contras there, but 1 believe
that that is given much . . The Hondurans have been excessively pre-
occupied with that problem. We know that the problem exists; we did
not create it arid we al1know its causes, which 1have cited many limes.
We are making efforts to resolve it.

.Reoort.rl Graduallv'!
l,\,con,~] SC,,no1:IIIth.,[ gr,idu.ill\./,C~/!~~C1i.1!ft/i?r? ,rtor, oni ira^
111l/ontl~~t~,tl,i~rt,urt,!I,,!!li,~tt~<>,rI/IC,/i~kv!IIII,[,CIA''('i'~$u~g~~lp:~
Viiz Je Il.>nililr:i\ kt\iork iil?? GAII 22 hnril lYS7 i~.ni~h.iri\:iJJcdI
(translation) (Ann. 5).) , .

18. Other senior members of the Honduran Government have made simi-
\:II:~JI~I\.IC~~Fur ~KIIII~IL (ln 26 Fcnru~ry l~181~ (';~rl$>\lc~nic~\a.I'ic~iJciii
oi ihc H.,iiJui;iii ('<mgrc,j. ia1J rc[lorlcr\ 1h:ii ihc ~,>l!lr<i.iiti.ick ~i~:lr;i~u:l
lrnnl II.I>~\n Hui~Juras..xnJst,ii~J ih;i~.-'llito<crchcl. \~JIIIJ hc111Si:.,r:~g~i.~n

tcrriit~r! iightin~ihr S.lnilinirtas". (Rcuicr, IIJ, 2 >l.irih I'J\f>(?\nn hl 1
1'1 Siiiiil.irl~ii.i\i.ilc~iiicnipuhli\hdJ in 7',iv>~,>.i.1-li,nilur.iniicuhli~ipcr.
I I 11r r l n orcr I I : Ihc Cio\crii~iicrlt <BIHLBII-
duracviews the presence of the contras in the National territory as a defen-
sive in~trument."~ (Tiempo, 24 November 1986 (Ann. 7).)
20. Honduran citizens affected by the contras' presence havc publicly criti-
cized the Honduran Government for permitting the contras to use Honduran
territory and called upon it to expel them from the country. For example. in
January 1987. Honduran coffee producers forced from their lands by contra
forcessoueht the assistance of the Asociacion Hondurena de Productores de

Cafe (AHPROCAFE), which in turn wrote a letter to various members of the
United States Congress. The letter deplored the presence of the contras in

"'El gobierno de Honduras observa la presencka de la contra en el territorio nacional
como instrurnentodefensivo." COUNTER-MEMORIAL OFNICARAGUA 285

Honduras. stating that more than 600 families had been displaced on their
account. (Letter from AHPROCAFE dated 12January 1987 (Ann. 8).)
21. Former coritra leaders have also stated publicly, in some cases in sworn
tcstimonv. that the contra forces ooerate [rom bases in Honduran terri-
tory, receive training in Honduras. and regularly use airstrips and intelligence
facilities in that State. Edgar Chamorro, a member of the contras' political
directorate between 1982-and 1984 whose testimony was cited onseveral

points in the Court's opinion iri Military and Pararnilitary Aciivities in nnd
against Nicrrrugi~a,Merits, Judgmeilr (I.C.J. Reporu 1986,pp. 46, 54, 59, 63.
67), explained how essential these Honduran facilities are to the contrns:
"The C.I.A., working with United States military personnel, opera-
ted various clectronic interception stations in Honduras for the purposc
of intercepting radio and telephonic communications among Nicara-
guan Government military units. By means of these interception acti-
vities and by breaking the Nicaraguan Government codes, the C.I.A.
was able to determine - and to advise us of - the precise location of
al1Nicaraguan Government military units . .This type of intelligence

was invaluable 10us. Without it our forces would not have been able to
operate with any degree cifeffectivencss inside Nicaragua. The United
States Government also niade it possible for us to rcsupply our troops
inside Nicaragua, thus pormilting them to remain longer inside the
country. Under cover of military manŒuvers in Honduras during 1983,
United States armed forces personnel constructed airstrips, including
the one at Aguacatc, that, after the C.I.A. provided us with airplanes.
were instrumental in resupplying our troops." (Supplemental Anncx G
to Applicant's Memorial, para. 18.)
22. It should not be understood that Honduras has freely given its territory

for use by the contras. On the contrary, it has been paid handsomely. In 1981,
when the contra forces first began to launch attacks against Nicaragua, United
States aid to Honduras (military and economic) totalled $45,300,000.Ry 1985,
that figure had increascd more than six-fold, to $296,000.000.(Central Ameri-
can Historical lnstitute Chronology. October 1986.)(A chart ieflecting United
States aid to Hoiiduras from 1977 to 1987 is attached hereto as Annex 9.)
United States funds have flowed not only to the Honduran national treasury.
but also to senior Honduran politicians and military officers,present and past.
As General Walter L6pez Reyes; head of the Honduran armed forces from
1984-1986,stated at a news conference on 31 March:
"[Mlany politicians have been bribed by the CIA as part of an effort
tu control the general situation of the country to benefit the operations

of the Nicnraguan counterinsurgents in Honduras." (AP. 1 April 1987
(Ann. IO).)
General Gustavo Alvarez Martinez, who left his position as head of the Hon-
duran armed forces in March 1984. has publicly admitted that he received
more than $50,000 from the United States Defense Department for "consul-
tine work" over the last Iwo vears. (Washington Post. 10Mav 1987(Ann. Il).)
TL, it is not surprising thaiond dur aas come Io be called "(he ~ented
Republic", "Coritra Country", and "the USS Honduras"'.

'See Gregorio Selser.IlundirrReprihl;caAlqi~il(Mn ex-SuS.A.1983)("the Renird
Republic");CBS"SixtyMinutes",29 hlarch 1987("ContraCountry");lnterviewwith
PrçsidentAzcona,McNeil-Lehrer Report, 27May1986 ("USS Honduras").286 BOKI>EK AND TRANSBORDER ARMED ACTIONS

23. Notwithsianding the above Honduras, in ils Memorial to this Court,
expresses astonishmcnt ihat Nicaragua belicves that there is an actual dispute

hetween ihe two States. Honduras gives great prominencc to a portion of a
televised interview of Nicaragua's President Daniel Ortega Saavedra, in an
effort to show that Nicaragua does "not have any problerns with Honduras ..."
(Memorial, p. 11, su/>ra).This is a distortion of the full statement by Presi-
dent Ortega, which is included in Annex 28 to the Mernorial, and which sets
lorth quite clearly the "problerns" Nicaragua has with Honduras - the very
same "problems" that are identified in the Application:

"Qrieurion: What is happening with Honduras? What is the attitude
of Honduras? How do you define il?
Answer: Well. Honduras is under a lot of oressure from the United
5i;it,, IIhe, hcen obligcd 1,):tccepl the prcwnic ol mcrceiiarv camps
thcrc: 11h.is hccn ohligcd tu ;iccept ,\meric:~n rnilitar! haw hcc:~usc II
is undcr cconomic hlackmail on the part of the United St:~tcs
Qiiesrion:When lsrael saw that in'lebanon, it invaded Lebanon. Are

you going to invade the border zone with Honduras?
Answer: The thing is that we do not have any problems with Hondu-
ras. We have problems with the United States.
We are fighting against the mercenary forcesand we have been fight-
ing wiih the mcrcenary forces in the border areas.
Qiiesrion:Aiid you feel that you have the right to do so?
Answer: Well, the thing is that this is not aggression against Hon-
duras. That is. whcn the mercenary forces corne from Honduras and in-
vade our country, we defend ourselves and there is cross-fire and there
is combat in the border zone and this is not an action directed against
Honduras. To ihe contrary. 1 ihink that this helps the defence of the
sovereignty of 1-londuras . . ."

24. lgnoring completely ils own complicity wiih the United States in the
very same miliiary and paramilitary activiiies in and againsi Nicaragua that
this Court has already adjudged illegal. ihe Honduras Memorial places the

entire blame for the present dispute between Nicaragua and Honduras -
and, indeed, for al1of the disputes currently afflicting Central America - on
Nicaragua. Honduras accuses Nicaragua of supplying arms to rebels in El
Salvador, and of trespassing on Honduran territory in so doing. This is the
same charge that the United States made in the Milirary and Paramilirary
Acrivifiesin and ugainslNic[irugria case. and which the Court found unsub-
stantiaied:

"[Tlhe evidence is insufficient to satisfy ihe Court that, since the
early rnonths of 1981, assistance has continued to reach the Salva-
dorean armed opposition from the territory of Nicaragua on any sig-
nificant scale. or that the Government of Nicaragua was responsihle
for any flow of arms at either period." (I.C.J. Reporrs 1986.p. 86. para.
160.)

25. Undeierred by this finding. the Honduras Memorial attributes the
very opposiie conclusion to the Court:

"ISlince the aovernment of the Sandinista Front came to power in
~iciragua, the gneral conflict in the region has increased con;iderably
as a resuli of the behaviour of Nicaragua itself towards other Central COUNTER-MEMORIAL OP NICARAGUA 287

American States, as is shown by the aid afforded by the government of
the Sandinista Front to the armed opposition in El Salvador imme-
diately after the fa11of the government of President Somoza, which can
be seen in the passage cited above from the judgment of the Court of
27 June 1986." (P. 16. sripra.)

26. The passage in question attributes no responsibility whatsoever to the
Nicaraguan Government for aiding the Salvadoran armed opposition; it says
merely that:

"hetwcen July 1979,the date of the fall of the Somoza régimein Nicara-
gua, and the early months of 1981, an intermittent flow of arms was
routed via the territory of Nicaragua to the armed opposition in El Sal-
vador" (I.C.I. Reports 1986, p. 86, para. 160).

Later in the opinion, as shown ;above,the Court stated that the evidence did
nor substantiate that the Government of Nicaragua was responsihle for any
flow of arms, either during this period or thereafter.
27. Apart from mischaracterizing the Court's finding on this issue, ouly
two instances of alleged arms trziffickingby Nicaragua are cited by Honduras.
Both incidents were fully described in documents taken into consideration by
the Court in the Military and Paramilitary Activities in and aguinst Nicaragua.
(See, ibid., p. 44 (referring to "Kevolrrtion beyond our Borders, Sandinista In-
tervention in Cenlrul America" (United States Department of State, Septem-
ber 1985)).) These incidents are:

(1) On 17 January 1981, a quantity of weapons and supplies that "had
been well camoutlaged inside a van" that allegedly entered Honduras from
Nicaragua was discovered when the van was detained at Comayagua. in the
middle of Honduras. Five Hondurans and twelve Salvadorans - and no
Nicaraguans - were arrested for their involvement in this shipment of
weapons and supplies. There is no evidence whatsoever that the Nicaraguan
Government was responsible for, approved or knew anything about this ship-
ment.
(2) On 7 April 1983,a van carrying ammunition (allegedly for rebels fight-
ing against the Ciovernment of Guatemala) was intercepted at Choluteca,
Honduras. The amniunition "had been packed in polyethylene bags and hid-
den in the sides of the van". According ta Honduras, the van entered that
country from Nicaragua. Agaiii, there is no evidence whatsoever that the

Government of Nicaragua was responsible for, approved or knew anything
about this shipment. Indeed,there is no evidence that either this shipment or
the one intçrcepted on 17 Januziry 1981originated in Nicaragua.
28. While Nicaragua has no knowledge about either of the two incidents
descrihed in the Honduras Menlorial, it has never denied the possibility that,

contrary to the Government's policy and efforts, some private individuals
sympathetic to the Salvadoran rebels from time to time may have smuggled
small quaniities of arms or ammiunition to El Salvador through or from Nica-
raguan territory. In the Military und Paramilitary Acriviries in and against
Nicaragi~a, Nicaragua submitted an affidavit by its Foreign Minister, Father
Miguel d'Escoto Brockmann (cited by Honduras al page 18, supra, of ils
Memorial), pointing out the <lifficulties Nicaragua faces in patrolling its
lone border with Honduras anil ~reventine arms traffickine across the bor-
derby private individuals. ~owever, ~icaFagua has steadf~stly denied, and
continues to deny, that it has ever undertaken, approved or acquiesced in288 BOUDER AND TRANSBORDERARhlED AnIONS

any shipments of arms or other war marérielto rebels fighting against another
Central American Government.
29. Honduras suggests that if Nicaragua cannot bc expected 10 seal off ils
border completely fromarms trafficking, then no more can be expected of it.

(Memorial, p. 18,siipra.) Perhaps this would be relevant if Nicaragua claimed
only that from tinie to time small quantities of arms were smuggled clan-
destinely into Nicar:igua (rom Honduras. Honduras cannot seriously con-
tend, however, that il has been unable to detect the open presence of up to
10.000armed <:onrrason ils territorv. and,.he freuucnt cross-border movc-
ments (intoand back out of Nicaragua) of large conCentrations of contra com-
batants fully equipped for battle. Nor can Honduras seriously assert that it is
unable 10Iocak the conlras' militarv bases. command centres. trainine facili-
lies. intelligence posts or airstrips. Nicaragua itself has repeatedly informed

Honduras of the precise locations of these facilities, and their whereabouts
are a matter of public knowledge. having been identified on numerous occa-
sions by the international news media.
30. The Honduras Memorial accuses Nicaragua of trafficking not only in
arms but in guerrillas as well. "Since July 1979 the Honduran territory has
also been used by thc government of the Sandinista Front for the passage of
insurgents to El Salvador." (P. 19,supra.) Only one incident is described, when
a group of guerrillas (their nationality is not provided) was aliegedly captured
"on their way to El Salvador" (ibirl.) by a Honduran military patrol at Las
Cuevitas on 27 March 1983.There is no allegalion. let alonc cvidence, that

the guerrillas origiiiated from, or evcrset foot in, Nicaragua. Nor is there evi-
dence of Nicaragua's responsibility for, approval or knowledgc of this guer-
rilla group. Nicaragu:~denies any such responsibility, approval or knowledge.
31. The Honduras Mcmorial makes a torturcd attempt to link Nicaragua
to a variety of terrorist actions inside Honduras and against Honduran mis-
sions abroad. (Ibid.) While reciting that these incidents have been provoked
by "[tjhe internai armed conflict in El Salvador. whiçh has been intensifying
since 1978". Honduras also blames the incidents on "the support given to the
guerrillas in that State by the government of the Sandinista Front since July
1979 (ibid.). There is no attempt to specify the kind of "support" given by

Nicaragua or how that "support" contributed to the terrorist actions de-
scribed, other than an assertion that "persons connected with . . .the domi-
nant movement in Nicaragua participated directly or indirectly in these inci-
dents" (ibid.). No such persons are named, either in the Memorial or in An-
nex 12 thcreto (citcd as thc source of these accusations)', nor is there any
indication of hciwhc. she or they participated in the incidents complained of.
The incidents themselves have no apparent conncction with Nicaragua.
Rather, they appear to have been undertaken in a misguided effort to ad-
vance the causes of rebels fiehting aeainst the Govcrnments in El Salvador.
(iu:ttr.m;ila and Hundurn, it\clf. Inrlccil. ;iccorJing tu Ili>nduraj'i i,wn Annci;

II. rchcl gr<,up. in :IIItlircc rountrics Iia\.c cl;~inicdicspo~isibility. i,nriousl?.
t<vr thcsc actioiis. IlIS obvitiu\ that thcre i\nci basi, u,h;itsocvcr for Iinkinr
Nicaragua or aiiy of ils citizens to these acts.
32. The Honduras Memorial accuses Nicaragua's armed forces of attacks

'Annex 12.it shouldbe noted.isa speech given by the PermanentKrpresentativeof
accusationsagainstNicaragua withoutidentifying asourcesyor9other evidentiarysupport.f
Thur.the onlvevidence i)flrredinsuooort ofthe accusationsin theHonduras Memorial is
a prioriterationofthe~s;irneaccusations,itselfdevoidofevidcntiarysupport. COUNTER-MEMORIAL OF NICARAGUA 289

on Honduran frontier and customs ~osts. helicooters and boats: the minine of
fields and roads along the frontierl and incursions into Honduran territ&.
While Nicaragua denies thcse charges in general, it acknowledges that since
the contras bëean usine ond duras-a sn &Jerational base for iaunchine at-

ties in men andniatérie/ have been suffered bvboth sides. Nicaragua consis-
tently has done everything withiii its power to.avoid such encountërs. Never-
thclcss, they have occurred for two reasons. First, Honduras permits the

contras to use its territory to cars. out altacks in and against Nicaragua.
Second, as set forth in the Applic;ition and as Nicaragua is prepared to prove at
the merits phase of this proceeding, the Honduran armed forces have actively
participated with the contras in many of their attacks inside Nicaragua, and
Drovided them with artillerv or air suooort for their ooerations. Thus. il is the
lllegal presence of the conAs in Honduras - which 1spossible onlybecause
Honduras permits the cvnrrns to remain in ils territory and to attack Nica-
ragua therefrom - that is responsible for the armed incounters that have
occurred between the two States and for the tragic losses of lifc and property
that both have suffercd.
33. Honduras not only blames Nicaragua for causing the present dispute
betiveen the taro States, but also for blocking al1efforts to achieve a diploma-
tic solution. These accusations are equally fallacious. As to efforts to nchieve
a diplomatic solution, Nicaragua has vigorously and in good faith pursued
both a bilateral ncgotiated settlement of its dispute with Honduras and a mul-
tilateral negotiated settlement of the dispute affecting al1 of Central Ame-
rica. A bilateral settlement consistently has been rcjected by Honduras,
which insists that anv neeotiatçcl settlement mus1 be reeional, and therefore

multilateral. innature. ~ët, a regional settlement has al& been frustrated by
Honduras. because any regional agreement would necessarily recognize the
sovereignty of ~icaragua and require, consistent with international law, that
al1assistance to the contras he tcrminated.
34. Since 1981 Nicaragua has sought a bilateral settlement directly with
Honduras. On 13May 1981,the heads of State of the two countries met at the
border post of El Guasaule. The Honduran President, General Policarpo Paz
Garcia, committed his Government to stop the attacks in and against Nicara-
gua by the contrasand by elements of the Honduran army. (Ann. 12.) Despite
this commitment, thc attacks not only continued but intensified. On 21 April
1982, Nicaragua's Foreign Minister, Father Miguel d'Escoto Brockmann,
prcsçnted his Hoiiduran countcrpart, Edgardo PaïBarnica, a 7-point plan for
resolvine the dis~iite bctween the two countries. It called for the sieinirinof a
non-agg;ession pact betwecn Nicaragua and Honduras; the establiihmcnt of
a system of joint patrol of the common border to prevent activities by armed

rrou~s that couldcndaneer relations between the~two countrics; and for dis-
&aniline the contrn miliïarv encamoments in Honduran territorv. The Hon-
duran ~voreignMinister resPonded in a note dated 23 April 1985 (Ann. 4 to
the Honduras Mcmorial), rejectrng a bilateral settlement of the dispute:

"1 understand, as was very clearly explaincd 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 regiorial nature and with perhaps more ambitious
objectives. Despite this, my Government considers that the regional ap-
proach should prevail sincs a major part of the problems confronted by290 BORDER AND TRANSBORDER ARMED ACTIONS

the Central Ainerican countries go beyond the possibility of a bilateral
solution." (Ann. 4 to Honduras Memorial, p. 87. siipra.)'

Honduras has maintained this position ever since, refusing to agree to any
bilateral settlement of its dispute with Nicaragua.
35. Between April 1982 and June 1983,a number of meetings look place
between hieh-level cifficialsof Nicaragua and Honduras. includine: a meetine
,rl ihc \lin;,icrs oi I>ci~,ncc:inJ ~hieïs oi St;iii (in 20 >la!. IC)1,mceiiitg (if

ihc Chicfs ui Ïiat.11 Furces in July I9R?: and i.;iri,>usineciingr iitthe F<,rcigii
n r I I cc I I I ~ Su :icrcemcnls rc\ulicd. hiiu.c.\,cr. Hond~r;is
continued tu assert that the dispute between the two countries could only be
settled as part of an overall regional settlement agreed to by al1ofthe Central
American States. During this period and thercafter Nicaragua continued to
make specific propnsals for a bilateral settlement between Nicaragua and
Honduras, as well as proposals for an overall regional settlement, which it
saw as complementsry Io, and not inconsistent with, a bilateral settlement.
(Ann. 13.) Honduras rejected every Nicarüguan overture. Since August 1982,
Honduras has refused even to meet with Nicaragua outside of the context of a

regional meeting involving al1of the Central American States.
36. The Hondur;is Memorial accuses Nicaraeua of blockine a reeional
settlement in Central America. Chapter 1,section 6. is entitled: '~icar&uan
Responsibilities for Blocking the Contadora Process." The section presents a
version of events that has liïtle in common with what has actually tianspired.
An accurate history of the Contadora process, dating from Nicaragua's agree-
ment tu participate (on 19 July 1983) through Nicaragua's agreement to sign
the "final version" of the Contadora Treaty (on 17June 1986). demonstrates
that no Government co-o~erated more fullv with Contadora than Nicaraeua.
aiid ni) C;oi.errimcnrJi0 iiiorc io ohsiruci .Iiinal ;ip,rccnicni ih~n Ilondurns

37. 1hc iir.1 f<irnialprop<,c;iliii;tde hy the Coni;idi~rs (iroup (Ciil<inthi.i.
hlcxico. P:in:gni:i.and Vcnc~uel:tI w;i\ the Documcnt oi Ohiccii\cs. r~rc\c.ntcJ
for agreement by the five central American States on 7 Septembe'r 1983. It
Inid down broad guidelines on the objectives of the process, with regard tu
reaching agreement on enumerated substantive points and thesteps tube fol-
lowed along the way. Nicaragua agreed to the Document of Objectives, as did
the other Central American States.
38. The Contadora Group then asked that each of the Central American
States prepare concrete proposals for an agreement incorporating the princi-

ples set forth in the Document of Objectives. The Central American States
were given until 1 December 1983 to present their proposals. Nicaragua was
the onlv State to comolv with this reaues.. On IS~Oct~ ~r 1983. Nicaraeua
pre\cnted ;I~iack:igc ui fivc proposcrl ire:iiics. collcîiii.c.ly iallcd I.cgal BAkes
iur C;u;>r;intccincPc3ce :andihe Iniernaiional Sccuriiv \ifthe Çcittr;il ,\meri-
can States. IX to Applicant's Request for lnierim Measures in case
concerning Milirory and Paramilirary Acriviries in and against Nicaragiia.) In

'The Honduran ForeignMinirteralsoreiected.insoecificierms.Nitarapua'soroliosiil

Varyrncampme~s on the gro"nd thut"thcriare no camps of Somoza~ëvolutianarirs in
Honduras" (p. 8Y,supnr H)ewent on Iostalc ihat:"Thetruth ul thisassertioniproved
hy our willingncssto acceptasystem of international monitoringand supervisionon our
ierritory."(Ihid Asof thedateofthisCounter-MemorialH , ondurashasrefusedIoaccçpt
anysuchsystem. COUNTER-MEMORIA LF NICARAGUA 291

addition to a regional treaty to be signed by al1five Central American States,
Nicaragua presented two bilateral treaties of friendship and CO-operation
(one between Nicaragua and Honduras, and one betiveen Nicaragua and the
United States) and one treaty guaranteeing non intervention in the internal
conflict in El Salv;idorl.
39. After months of neeotiations. on 7 Seotember 1984. the Contadora
Ciroup j~rchc~~icd IO thc li!c~(:cnir.~l ,\nl~,r!c:~nit,i<tprc~poscJ trc3ty ih.41il
cdllcJ ii5 rr.iscJ or iin;il vcr\ion" of the '.<'<iiit;idL,ii rcat? for I'c:icr..inJ
C.'<,-<incr;itiin Ccnir;gl ,\ni:ric;t" In iht c,>\.cring I~1tr.rici thfi\: Stdtc~.
-
the eontadora members stated:
"This latest version is the result of an intense process of coiisulta-
tions and a broad exchange of views with al1 the Central Anierican
governments ...
...................................

The signing of the Contadora Act on Peace and Co-operation in Cen-
tral Anierica should provide the basis for security and coexistence
governed by mutual respect ...
...................................

In the light of the persistent threat to peace, we believe that the Go-
vernments of'the region miist cxpedite the procçss of assuming the legal
commitments contained in the Contadora Act.
...................................

Weare confidentthat iri the not ton distant future, we the Ministers
for Foreign Affairs of the Contadora Group and our colleagues in the
Central American region, once the improvements considered relevant
are made, will be able to sign the Contadora Act on Peace and Co-ope-
ration in Central America."' (Communication from the Ministers for
Foreign Affairs of the Contadora Group addressed to the five Central
American heads of State (Ann. 14).)

40. In the weeks following the presentation of the Contadora Treaty. high
officiais of each of the Central American States made positive public state-

'The proposed non-intervention treatyconcerningEl Salvadorwasneither "drvious"
nor .'interventionist",asclaimedinth<:HondurasMemorial(p.31,supra).On thecontrary,
itwouldhave euarantred strict non-interventioninthe internalaffairsofEl Salvadorbv
prohibiting1hecontr;icti nrgpasrtpoetingarmsorotherassistanceIotheparti&
to the internalconflictinthat country.
*"Estadlrimn versiones elresultsdode un intensoprocesodr consultasy de unamplio
intercambiode puntos devistacon todoslosgobiernoscentro-americanos ...
..La.suscripci6ndelActade Confadora para laPar yCoaperacion en Centroamerica
debeconduciralestablecimientode una basedeseguridadycanvivenciamutuamente
respetuosa.. .
....................................
Ante lapersistenteamcnaza de lruptura dela par es necesario,nuestrojuicio,
que los gohiernos de la regidapresurenla adopcidn de los compromisor jiiridicos
contenidos enelActa de Contadora.
...................................
Abrigamos laconfianzade que en unfuturoinmediatalosCancilleresdelGrupo
de Contadora y sus colegasde laregioncentroamericana,una vezhechanlas afino~
ciones que seestimenpertinenti:~,podemossuscribirel Acta de Contadora para la
Par y laCaoperacion enCentroamerica."292 BORDER AND TRANSBORDER ARMED ACTIONS

ments about it and there was great optimism that the Treaty would be signed.
Then, on 22 Septeniber 1984, Nicaragua formally communicated its accep-
tance of the Treaty "without reservation" (Ann. 15). All of a sudden, the
uositive attitude of the other Ccntral American States changed. As described
hyO!dcri Ort~qa. ilic I:i,rr.igii \liiii,iriit P:in:am.i.and i:prc*cni.~ti\:01 III\
(i.~i.crnniciiiiiihc C;,ni;idur.î I>ri>.'c.\.

"We helieved that at that moment that the days of peace and under-
standing were shinine among the Central Americans. The situation be-
gan to Ehange when(he ~icara~uan Government formally manifested
to the Presidents of the Governments that made up the Contadora
Group that Nicaragua supported the revised Contadora Act without
reservation and was prepared to sign it. In spite of the fact that the reac-
tion of the Nicaraguan Government came alter there had likewise been

positive declarations from the other four Central Amcrican Govern-
ments, there arose an atmosphere of caution toward the revised Act on
the part of those four Governments."'
41. Honduras reacted to Nicaragua's acceptance of the Contadora Treaty

hy calling for a meeting of the five Central American foreign ministers in
Tegucigalpa, to discuss changes in the Treaty. The mcmbers of the Contadora
Group itself were not invited. Nicaragua refused tu participate, stating that
the meeting was contrary tu the Contadora process. Guatemala sent only a
vice minister. The meeting resulted in a proposed treaty substantially differ-
ent from the one presented by Contadora. On 20 October 1984, the Docu-
ment of Tegucigalpa was provisionally agreed tu by Honduras, El Salvador
and Costa Rica. but not Guatemala.Thereafter the former three States were
called the Tegucigalpa Group. The Contadora Group was displeascd by the
rump session and the draft treaty it produced. According tu former Pana-

manian Foreign Minister Oyden Ortega:
"We were very much struck by the fact that the Honduran Govern-
ment would convene a meeting in Honduras of other Central American
Governments, excluding the fUur Contadora foreign minisiers, for the

purpose of carrying out a joint revicw of the Act and suggesting the
modifications that they considered appropriate.
This new elçment indicated the beginning of a new moment of diffi-
culty or crisis within the Contadora process. since the convening of the
meeting broke an unwritten rule of the Contadora Group and of the
joint meetings with the Central American foreign ministers.
We were expecting small adjustments to refine the revised Act, but
in many cases substantial modifications ta the draft Act were presented.
In fact. the observations presented by Honduras, El Salvador, Costa
Rica and the United States implied - if applied literally- reopening
the negotiation of matters of substance.

The Government of Honduras proposed, as part of its exceptions to

'"Creiamos que enese momcnto fulgurabanlos dias de paz yentendimiento entrelos
centroamericanos. Ln riruocionemperci acanibiar crrandoelgobierno nicoragirense
manifesrd fwmnln,ente a los Presidenresde los avhiernos oue inrraraelGrupo de
~oniador;, queNicnragitnopoyabosin rerervaseÏ~cta ~evi.s&ladeonl la du yéa,~taba
dispiiesrn firmarla. A pesar de que la reaccidn del Gobicrno nicaraguense se dia
cuando ya sehabi;in producido lasmanifestaciones tambiénpositivas de lus otros
cuatro gobiernos ceniroamericanos.se crra unamhienlede re&rv<ial Acta Rerisiidu
porparte de losotros cuatro gobicrnas centroamericanos." COUNTER-MEMORIA LF NICARAGUA 293

the Act. thc creation of a disarmament committee. This would bc unac-
ceptable. above all. if it was meant to be established within the frame-
work of the Inter-American Defense Board.
The ex-President of Venezuela. Carlos Andrés Peréz, at that lime
dcscribed the Document of Tegucigalpa as 'the anti-Contadora Act'."'

42. 011 6 S,,v~,mbcr lV'i4.tlic l\',r.~/~r~r,yo'~r rcvc.3ltd th3t the C;o\r.rn-
mcnt i~fihc UniicJ St:iics h:~ilintr.r\r.ncJ IIIthc Cdnt;iil~~r;pr<,c.e>>tiihlo-k
ac.xpt;incc ailihr. rcvi\crI (:,ininduraI'r~.:itvh\, Il<induras. (:iirt;i Kic;i ;inJ FI

~alvador.~T-~~~oshirrvror~Posr cited as itsSo;rce a secret background oaoer
for a meeting of the National Security ~o&il, dated 30 ~ctober 198i. ~he
. .er, entitled "Backgro.nd Paner for NSC Meeting on Central America".
States:

"We have ellectively blocked Contadora Group efforts Io impose the
second draft of a Revised Contadora Act. Following intensive US con-
sultations with El Salvador. Honduras and Costa Rica. the Central
American submitted a counterdraft (sict)othe Contadora States on Oc-
lober 20. 1984. It reflects many of our eoncerns and shilts the focus
within Contadora 10a document broadly consistent with US interests."
(Ann. 16.p. 404. infra.)

Commenting on the revelation of United States effortsto block acceptance of
the Contadora Treaty. former Panamanian Foreign Minister Ortega writes:
"An action was revealed whose consequences and form departed from the
methods and objectives of the Contadora Group."'

43. At the urgiiig of the members of the Contadora Group. and Io break
the impasse created by Honduras and the other members of the Tegucigalpa
Group. Nicaragua agreed to negotiate changes in thc "final version" of the
Contadora Treaty that it had already accepted without reservation. The nego-
tiations lasted through most of 1985,resulting in a new draR of the Contadora
Treaty presented by the members of the Conta'dora Group on 7October
1985. The five Central American States were eiven 45 davs. or until 21 No-

vember 1985, to respond. Nicaragua respondedon 11 ~oiember 1985 agrce-
ing to most of the Treaty, but expressing specific concerns about certain pro-

'"Nos Ilam6poderosnmcntclaalencionqueelgobiernode Hondurascifara a losotror
gobiernosccntroamericanos, con laexclusiandclascuatro CancilleresdeContadora.
auna reunion en rsrpais.conclproporito de efectuaruna revisi6ncanjuntadel Acta
ysugerirlasmodificacionrs que cstimaranconvenientes.
Estçnuçvo rlrmcntoin<licrrhor.li,ridetoinirrvomunienlodificiIodecririsdentro
~lelproce.s<IrC,>nia</oryr.yiieIosolrrcunvoc~ilori<~mpla con irnnreg10no escriro
</elGrir/>de Co>trrtdoru<IrLisrritirionesconjitnt<ron 101Ca,rcillerrscertiroame-

riEspcrihnmos prquenos ajustes paraafinarel Acta revisada.y scpresentaron en
muchos casos m<idificacionessustancialesalProycctodeActa.

De hçcliii.lasohsrrviicionrsprcsentadaspor Honduras,ElSalvador,CostaRicay
Estados Unidus implicahan - de srr aplicadas al pie de la lettr- rrubrir 10
tirgocirtci<i,dre<,.yp.srirsrunrivos.
Elgohiernodr I.londurasplanteo.comopartede lasobjectionesalActa,lacrçaci6n
de un Comite rrilhoc de desarme. Io cuvlrerultaba inaceptable, rohre todi~,sise
pretendia h~cerlo en elmarc« de laJunta Interamericanade Defensa.
El exprrsidentr de Venezuel;iCarlosAndrésPrréz,califico en ese moment" el
DocumçntodcTegucigalpa como'elunri-AcrndeC~nrodora'."
l"Quedaba aldçscuhierto unaacci6n cuyasconsecuencias y forma seoparrabatide I<is
r?il'rodosohjerivosrielCrirpu<leConladora."294 BORI>ER AND TRANSBORDER ARMED ACTIONS

visions. Nicaragua indicated its willingness tu continue negotiating about

these provisioiis, however. (See Ann. 11 tu Honduras Memorial.) None of the
other Central American States accepted the Treaty but negotiations con-
tinued.
44. On 7 June 1986.after further neeotiations, the Contadora Group ore-
sented to the five Central American ~tzes the definitive and final version of
the Contadora Treaty. In their official cover Ietter of 6June 1986.the Foreign
Ministers of the ~oiitadora States said:

"The Foreign Ministers of Columbia, Mexico, Panama and Vene-
zuela will meet on the 6th of June. a date iointlv aereed unon to con-
clude officially the negotiations on the contadora kt fo; Peace and
Cooperation in Central America and tu proceed tu ils formalization . ..
~bda~, we make a formal delivery-of what, in the judgment of
Contadora, should constitutr the final version of the Contadora Act for
pcace and cooperation in Central America"'

45. Nicaragua promptly agreed tu sign the Contadora Treaty. In a formal
response to the Contadora Group of 17June 1986,the Government declared:

"Nicaragua, which always has been ready tu sign the Act of Peace in
the soirit of the Caraballeda messaee. considers that the Act of June 7.
1986,'presented formally tu the central Arnerican countries by the
Contadora Group, constitutes the only instrument that 'can and should
bring about a rapid and effective coni~usion tu the negotiating process'
to achieve peace in Central America."'

46. Honduras on the other hand, rejected the Contadora Treaty. In a
communiqué of 13June 1986, the Honduran Government stated:
"The last proposed draft of the Act by Contadora dues no1 consti-

tute. in the ooinion of the Government of Honduras. a document that
establishes r&sonable and sufficient obligations to guarantee its secu-
rity."' (Ann. 19.)
In the officialresponse tu the Contadora Group, the Honduran Foreign Minister,
Carlos L6pez Contreras, wrote:

"As 1 have already expressed verhally during our joint meeting in
Panama, the Government of Honduras takes note of what was stated by
the Contadora Group in the sense that the final draft of the Act com-

"Los Cancillerede Colombia.México P.anamayVeneruelanosreunimosel6dejunio,
fechacomunmentçacordadaparadarporconcluidaoficialmentelaneguciaciondel
Actade Contadorapara lapar ylaCooperacion en Centroamérica yparaproceder
asu formaliïaci6n. .
Hoy hacemosentrega formalde Io que ajuicio del Grupode Contadora debe
constituilaulrim<zversiondel acta de Contadorpara la pazy la caoperaci6nen
Centroamérica."(Emphasisadded.)(Ann. 17.)
"Nicrirugi~,ue siempreha esiadodispuotnofirmar elAcrodePar en el espiritudel
mensaje de Caraballeda.consideraque el Actadel7 dejunio de 1986,presentada
formalmente alospdses centroamericanospar elGrupo de Contadora,constiluyel
Cnicoinstrumeniuque ruede y debepropiciar unn conclusidnrdpiday eficoz del
procesonegociador:pBmolconrurlupor en Cenrroaméricn."(Ann. 18.)
'OriginalSpanishtext: COUNTER-MEMORIAL OF NICARAGUA 295

pletes its mediation effort on the substantive aspccts of the Act, and
that the Contadora Group nevertheless rcmains available to assist in
the negotiation of the operational and practical aspects of the same."'
(Ann. 20.)

47. Since the Honduran Foreign Minister's objection tu the Contadora
Treaty, there have been daily attacks in and against Nicaragua by conrras oper-
ating from bases in Honduras. The airstrip at Aguacate, like other airstrips
inside Honduras, bas been used on a daily basis to airdrop supplies tu conrra
units inside Nicaragua. (Ann. 212.)Hundreds of conrras have been trained in

rnilitary tactics, sabotage, dernolition, etc., at special training facilities inside
Honduras, such as the one at Capire. Contra military activity emanating frorn
Honduras and directed against Nicaragua has been highcr over the past 12
months than at any previous time. Death and destruction inside Nicaragua are
higher than at any previous time.

~ ~ ~ ~
la neeociaci6n de los asnectos uncrativvorActicosde la misma."

2~nneg21 is the flight ~ogUbtainedfrorn the'\dreckage of a C-123cargo plane thatwas
shotdown ovrr Nicaragua on5 Octobei 1986.The salesurvivingcrew member, Mr. Eugene
Hasenfus, a citizen of the United Statewas captured by Nicaragua" armed forces. Mr.
Hasenfus subsequently stated thatthe downed plane was on a mission to drop arms and
other warmatérieltoconlrn forces inside Nicaragua. Hestated that he hadparticipetin
numerous such missions and that he balieved he was working for the Government of the
United States.Mr.Hasenfur confirmed, as recorded in the fliqht loqs.thatthe downed C-
123hadmade numeraus trips into andout of iheconiros'airbise a<~guacate. Honduras,
for thepurpose of loading up and delivering supplies tcontroforces insidc Nicnragua.
For the conveniencr of the Court the designator in the logs refers to the airbase at PART 1. JURISDICTION UNDER ARTICLE 36 (2)
OFTHE STATUTE OFTHE COURT

48. The Application of Nicaragua asserts as a ground of the jurisdiction of
the Court the declarations of the Parties made under Article 36 (2) of the
Statute of the Court. Nicaragua's declaration was made on 24 September 1929.
without reservation. It is currently in effect(Mililnry ritid t'rir~in~iliiaryAcrivi-
ries in and againsr Nicaragiia, Jirrisdicrion and Admissibiliry. I.C.J. Reporrs
1984, p. 417.) Honduras accepted the jurisdiction of the Court in a senes of
declarations of which the most recent was filed on 20 February 1960, and re-
cited that it was "for an indefinite term, starting from the date on which it is
deposited with the Secretary-General of the United Nations". These two inter-

secting declarations confer jurisdiction on the Court in this case under the
optional clause.
49. Howcver. on 22 May 1986, Honduras purported to make a new decla-
ration. Paragraph 1recites the language of Article 36 (2) of the Statute. Para-
graph 2 states:
"This declaration shall not apply, however, to the following disputes
to which the Rcpublic of Honduras may bc a Party:

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

(c) Disputes relating to facts or situations originating in armed con-
flicts or acts of a similar nature which may affectthe territory of
the Republic of Honduras and in which it may find itself involved
directly or indirectly;
. . (Memorial, Ann. 43.)

Paragraph 3 or the "new declaration" states that Honduras "rcserves the right
al any timç to supplemcnl, modify or withdraw this dçclaration or the reser-
valions contained thercin . . ."And paragraph 4 asscrts that "This Dcclara-
lion replaces the Declaration made by the Government of Honduras on 20
February 1960."'
50. Honduras contcnds that this "reservation" hzisthe effect of ruling out

jurisdiction of the present case. In this Part of the Memorial, Nicaragua will
show that the reservation is not effective against il.

'Paragraph 4 doesnotaffecttheanalysisin thiscase.WhetheraState boundby a prior
declarationcan modifythe cffectof the declarationisna1aflectedbywhetherthe new
effortisdenarninateda "modification"ora "new declaration".SecMilirarj ondParomili-
roryAciiviiiesion</ogainsrNicaragiia,Jiirisdicrond AdmissihiliryI.CJ Reports1981.
p.417. The same rulesapplyinthe caseoftotalor partialdenunci.ation01adeclaration.
RighrofPorsageovcrIn,lion'Ièrrirory,PrelirninaryObjeciionr,I.C.J.Reporls195p. 142. CHAPTER 1

THE COURT HAS JURISD1C:TION UNDER ARTICLE 36 (2) OF ITS
STATUTE, AND THE HONDURAN DECLARATION OF 22 MAY 1986
IS NOT EFFECTIVE

51. Nicaragua contends, first. that Honduras cannot modify or partially
denounce its decliiration of 20 February 1960, and in any case such an at-
tempted modification cannot be effective against Nicaragua in the circum-
stances of this case.

A. Having Been Made with No Stipulations as to Duraiion, the "New
Declaration" by Honduras Cnuld Nol Be Withdrawn or Modified

52. The "new declaration" made by Honduras on 20 February 1960 accep-
ting thçcompulsory jurisdiction of the Court read as follows:

"The Government of the Republic of Honduras. duly authorized by
the National Congress, under Decree No. 99 of 29th January 1960, to
renew the Declaration referred to in Article 36 (2) of the Statute of the
International Court OSJustice. hereby declares:

1. That it renews the Declaration made by it for a period of six years
on 19th April 1954 and deposited with the Secretary-General of the
United Nations on 24th May 1954, the term of which will expire on
24th May 1960, recognizing as compulsory ipso facto and without spe-
cial agreement, in relation to any other State accepting the same obli-
gation, the jurisdiction of the International Court ofJustice in al1legal
disputes concerning:

(a) the interpretation of a treaty;
(b) any question of intcrn;itional law;
(c) the existence of any fsct 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 reciprociiy, foran

indefinite renn,starting Sromthe date on which it is dep6sited~w1ththe
Secretary-General of the United Nations" (emphasis by the Govern-
ment of~Nicaragua).
53. This text differs from the two earlier declarations by Honduras, dated
2 February 1948 and 19 April 1954,both of which wcre for six years - the
first giving no other details, whereas the second provided for the possibility of
tacit renewal.
54. The question then is to determine whether a State bound by a Declara-

tion of Acceptance of the compulsory jurisdiction of the Court that il has
made "for an indefinite term" can modify or denounce that declaratioii. The
reply can only be iiegative. Any other approach would he incompatible with
the Optional Clause system.298 BORDER AND TRANSBORDER ARMED ACTIONS

55. The predomiiiant conception of the legal nature of the link between
States that accept the compulsory jurisdiction of the Court is stated by
Charles de Visscher as follows:

"The system of an Optional Clause may be analysed as a complex of
bilateral conventions deriving from unilateral declarations which con-
verge, giving rise to a consensual link between the declarant States with
effect from the day their successive declarations are lodged." (Charles
De Visscher, Problèmesd'interprétationjudiciaire en droir internarional
piiblic,Pedone, Paris, 1963,p. 199.)'

5b. Tlie ,~>IIII~H$01hc I~c~t-qu~~I~i~:,cuJth~#r>I> the .;%ille(Sec, lnp;irti:u-
];Ir, l';~ulGuggcnh.!~~~i,/'ro;1,/c ,/n,,t;~~IC~~~~~II~~~I~I~I~Il~~I.II~ICcl< I'Lni-
,cr*ttr' in. 4. '1. II. 11.120. Sir Iluiiiiilire\~ \\'.iIJ<i'Dr..4iiic of
the 0;tional ciause",' BYBIL,' 1955.1956, p. f54; Sir ~erald'Fitzmaurice,
"The Law and Procedure of the I.C.J.", BYBIL, 1957, pp. 230-232, and
BYBIL. 1958. o. 75: Sir Hersch Lauteroacht. The Develoumenr of Interna-

tional Law by t/;eInternationalCourt, tec ce nso,n don 1,58;~~. 345: 346; Eric
Suy, Les acresjuridiques unilatérauxen droir internationalpublic, Librairie
générale de droit et de jurisprudence, Paris, 1962, pp. 142-147; Eduardo
Jiménez de Aréchaea. "International Law in the Last Third of a Centurv".
RCADI, 1978-1, vol. 159, p. 154.)
57. This analysis is fully confirmed by the juri. .udence of the Court
which:

"considers that, by the deposit of its Declaratiou of Acceptance with
the Secretary-General, the accepting State becomes a Party to the sys-
tem of the Optional Clause in relation to the other declarant States,
with al1the rights and obligations deriving from Article 36. The contrac-
rua1relation between the Parties and the compulsory jurisdiction of the
Court resulting therefrom are established, 'ipsofacto and without spe-
cial agreement', by the fact of the making of the Declaration." (Righr of

Passageoverlndian Territory,PreliminaryObjections,I.C.J. Reports1957,
p. 146 (emphasis added).)
58. The Court reiterated this position in its decision of 26 November 1984:

"ln fact, the declarations, even though they are unilateral acts, estab-
lish a series of bilateral engagements with other States accepting the
same obligation of compulsory jurisdiction, in which the conditions,
reservations and lime-limit clauses are taken into consideration." (Mili-
rary and Pararnilitary Acrivities in and againsrNicaragua, Jnrisdicrion

and Admissibility,I.C.J. Reports1984, p. 418 (emphasis added); see also
p. 420.)
59. It follows necessarilv that a State which has made a declaration under
Article 36, paragraph 2, oi the Statute is bound by it and cannot disengage

unilaterally from the obligations entailed. To permit it todo so would be con-
trary to the contractual nature of the resulting relations and to the priuciple
of good faith.

'"Le systèmedela clause facultatives'analyscnuncomplexedeconventionsbilatérales
issuesde déclarationsunilatéraleqsuiserencontrent,cette rencontreayantpour effet
defairenaîtresuccessivement un lienconsensuelentre lesEtatadéclarantsàcompter
du jour dudépôtde leursdéclarationssuccessives." COUNTER-MEMORIAL OF NICARAGUA 299

60. As the Court has stressed:
"ln the establishment of this network of engagements, which consti-
tutes the Optional-Clause system, the principle of good faith plays an

important role." (Ibid., p. 418.)
61. It follows that the law of treaties or, in any event, the general princi-
ples thereof applies to the legal problems relating to the application of decla-
rations of acceptarice of the Optional Clause, as the vas1majority of authors

emphasize:
"Undoubtedly, the decl;lrations under Article 36 (2) of the Statute.
made as they are at different times and by different States are not in al1
respects enactly like a treaty. But they are essentially a treaty." (Sir

Hersch Lauterpacht, The L>evelopmenrof Internarional Law by the In-
ternafion<rlCourt, Stevens, London, 1958,p. 345.)
(See also E. Hambro, "Some Observations on the Compulsory Jurisdiction of
the International Court of lus tic^:", BYBIL. 1948,pp. 142et seq. or Sir Hum-

phrey Waldock, op. cit.. p. 264; flnglo-lranian Oil Co., PreliminaryObjection,
I.C.J. Reports 1952, p. 142 (dissenting opinion of ludge Read).)
62. The general principles of the law of treaties are, in particular, applica-
ble to the termination of obligations deriving from optional declarations:

"The leeitimacy of terminatine any declaratiou otherwise than in
accordancekith ils terms must, on iriniiple, hinge upon the mles govern-
ing the termiiiation of treaties." (Sir Humphrey Waldock, op. cil.,p. 265.)
"ln general, unilateral termination of the obligations of the Optional
Clause mus1 be regarded as subject to conditions governing the termi-

nation of treaties." (L. Oppenheim, ed. by H. Lauterpacht, Interna-
tional Law, Longmans, Loridon, 7th ed., 1951, p. 61.)
63. The applicable principles are set out in Article 56 (1) of the \lienna

Convention on the Law of Treaties, relating to the "Denunciation of or with-
drawal from a treaty containing no provision regarding termination, denun-
ciation or withdrawal":
"1. A treaty which conlains no provision regarding its termination

and which daes no1 provide for denunciation or withdrawal is no1 sub-
ject to denunciationor withdrawal unless:
(a) it is established that the parties intended Io admit the possibility of
denunciation or withdrawal; or

(b) a right of denunciation or withdrawal may be implied by the nature
of the treaty."
04. l'tir.~, provision> ucrc sil<ipt~xl.ilthe ti\.~nl).-l<iuriliplcn;ir\x.miiln <,f
tlic I nitcd I\.itii>n,C,infcriiiic oiitlir. L3n i,i'i'r~,:~~~,11 13 3I;syI~lh~l.h! '15
totc. for, nonc ,~g~iii>t.tnd aI?stcnti,~i~s1'Iir.yarc u~.Icl). rccc~gn~/c.l :fi< .fi

;.~difi;:tti.~nof the rule- <iip:nr.r:il intcriiatioii13\i 'l'hcLL~.IIScr\ic: oi I~L.
I.'nitr..S:itii>n,iic~ic,lin;aIditcrc,f22Jult IV71 10 thc S~iicg.ilcc ~iutli~iritics.
"[litis established that both the International Law Commission and
the Vienna Conference have considered Article 56, at least as to ils

general principle, as recognizing the existing law linking States with one
another, whether or not they are parties to the Convention." (Cited by
Daniel Bardonnet, "La dénonciation par le Gouvernement sénégalais
de la convention sur la mer territoriale et la zone contiguë et de la con- COUNTER-MEMORIA OF NICARAGUA 301

un Ilrstorical Per.spective,Vol. II, Sijthoff, Leyden, 1976,p. 428; D. W. Bowett.
The Lirw of International Instirrrtions, Stcvens. London, 1982, p. 271. The
few dissents are qualified and caiitious in their views with the possible excep-
tion of lhat of MI. Shihata (The Power of the Inrernatiorlal Court ta Determine
Irs Oivn Jirrisdiciion, Nijhoff, The Hague, 1965.p. 167).This is true in particu-
lar of the position adopted by Ambassador Shabtai Rosenne, who observes
that:

"With remrd to the terminal date. there are still found a few declara-
ticin5iihi~lis<ini:~inni, Iirii\iri,iii,ricrniin.iiii>ii :iiit 15bclici.cJ th;,i.

prcriou\l! ~Ii\:uucJ. CIILCI u\~uld li.~\c 18,he sircn ICI CII~d~,nun~i,t-
iiiii,>i tlicic iii~iruni~ni~."I 71,~./.,ii<,n<l/%~,II~.C of /,ri<r~wri<,,z~i/
Cr,rirt. Sijthoff, Leydcn, 1965,2nd ed., 1985,p. 472.) *

This conclusion is further qualified by his admission that the conclusion ap-
plies only to declarations made beïore 1945(ibid, p. 417). and the reasoning
rests largely on the particular circumstances surrounding the dissolution of
the League of Nations and the Permanent Court. (Ibid.?al pp. 415-417;sec also
Sh. Rosenne, The Tinte Factor in the Jiirisdiction of the lnlernario~inlCourt of
Jrisrice. Sijthoff. Leyden. 1960,pp. 24-27.)

71. Sir Humphrey Waldock's provisional, almost transient, position is still
more guarded. In his second report on the law of treaties, the ILC special
rapporteur "thought il right to bring under" the catcgory of treaties for which
denunciation or withdrawal was permissible on twelve months' notice, "how-
ever reluctantly, treaties of arbitration, conciliation or judicial settlement",
in which he includes optional declarations. (ILC Yearbook, 1963, Vol. II,
p. 68.) However, the doubt evinccd by Sir Humphrey Waldock shows that this

conclusion was based solely on "the modern trend towards declaratioiis ter-
minable upon notice". The position of the special rapporteur was rejectcd by
almost al1the menibers of the Commission several of whom - in ~articular
Messrs. Castrén.Amado, Verdross, Bartos and TU;& - protested'at the in:
clusion of treaties of arbitration, conciliation and iudicial settlement - or
optional declarations - in the lis1of treaties that could be denounced unila-
terally. Only Ambassador Roserine look the opposite view (ILC Yerirbook,

1963.Vol. 1, pp. 100-107). Professor Briggs pointed out that the only argu-
ment used by the special rapporteur in support of his contention - the frc-
quency of clauses providing expressly for a right of denunciation,

"could with the same force beused to prove the oppositr: contention, that
if treaties were silent about termination the parties had dcliberatelv
intcnded to exclude denunciation" (ibid., al p. 103).

or declarations made'in pursuance of the 0Ptional Clause as exampies of
treaties that were inherently subject to unilateral denuncialion.
73. In his remarkahle article, "Decline of the Optional Clause". BYBIL,

3953-1956, Sir Humphrey asserts unamhiguously the impossihility, in prin-
ciple, of renouncing the terms ol a declaration made for an indefinite term:

"When the two States concerned are bound by such a declaration,302 BORDER AND TRANSBORDER ARMED ACTIONS

nite continuation ünlcss provision for a lime-l'imitis made when a State
makes ils declaration.
On principle, therefore, there is no right of unilateral termination of

a declaration under the Optional Clause unless the right has been ex-
pressly rçserved in thc dcclaration. On the same principle also there is
not, in the absence of an express term, any right of unilatçral variation
of a declaration previously made and still in force." (Ibid., p. 265.)

74. This opinion follows from the more general view of most authors that
there is certainlv no gencral rieht of dcnunciation of a treatv of indefinite

t. 1, lnt'roducti~~ et sources.'~irey, Paris. 1971, p. 213; Sir Robert ~ennings;
"General Course on Principles of Public International Law", RCADI, 1967-

11,Vol. 121,p. 565; Paul Reuter, Introdirction uir droit des truités,PUF, Paris,
1985, p. 136.)
75. App~ ~n~ this general principle. Professor R. P. Anand concludes:

"Thdrc I>ciiir: iitiprc,\i.iiiii iiithr. $t:<tuir II\eL.ni. rr..i\giii:ihl~to ci\-
wnic 1l1:tthe ;ahrc~g',li\>o nr cxp~r! oi th' ~l~.;l.tratiunniIl hc >uhjc~ tu
the r~ner;il rule, :<i\.crinc t:rniin.~iiiillof trc,tlic> I'Ilr\\ouid iii~iill.ill\
mefi that a state havingrnade a declaration without any provision foi

ils termination would not be entitled 10 cancel it as against other states
having declarations for fixed periods except with their consent. Other-
wise, termination of the declaration would not be justiliable except by
reference to some special rule concerning the termination ol treaties,
such as, the doctrine of rebiis sic stnnlibr<.s.Morcover, under Article 36

(6) of the Statute, it would be for the Court to decide any dispute as to
the validity of a purported cancellation of a declaration." (Compulsory
Jirrisdictiorr of the Inrerrintionul Coirrt of J~rstice,Asia Publishing House,
London, 1961,p. 177.)

"il may or may not be expedient as a matter of policy to attach to
acceptance of the Optional Clause a time-limit which can be renewed at
will. but if astate has not seen fit to do so. it is clcar that il intended to

be and is bound permanenlly or until the other signatories of the Clause
release it from its obligation." (Ibid., p. 179.)

"On principle, therefore, there is no right of unilateral termination
or variation of a declaration under the Optional Clause unless the right
has been expressly reserved in the decla&tion." (Ihid, p. 180.)

76. Moreover, judicial or arbitration clauses, far from being inherently
liable to denunciation bv mere notification. are ~articularlv stable and. one
iiiight,a\. ci:~.l>ti.>n.all~~~~c~i~t,rnt";II.I~L~c i\1 ~ir.ur~i~t,iii~c~ '1111~,~\r.tlcIc~
ni. p.ir;i~r;~pli-4 .i 111~ .'iciiii.~Ciin\.-iiiii,ii on the I .in ,ii .l'rc.iiio ,>rcniJe\:
~ -~
"Nothing in the foregoing paragraphs [concerning the procedure to
be followed with respect ta invalidity, termination, withdrawal from or

suspension of the operation of a treaty] shall affect the rights or obliga-
tions of the parties under any provision in force binding the parties with
regard to the settlçment of disputes."

77. The Court has. on a number of recent occas~~n~. noted this s~a.ilitv of ~~ ~ ~ ~
the dispute settlemeni clauses. (See Fisheries Jirrüdicrion cases, ~irrisrlictiokof
the Court, I.C.J. Reports 197.7,pp. 20, 65; United SraresDiplonintic und Consrrlar COUNTER-MEMORIA OF NICARAGUA 303

Staff in Tehron, I.C.J. Reports 1980.p. 28.) Many courts of arbitration have
ruled similarly. For example. the award made on 2 Septcmber 1930in the case
of Lena Goldfïr/rl.s Compcrnyv. Soviet Governmrnf (Conrell Law Qlnortrrly,
1959,pp. 31 erseq. );the preliminary award made on 27 November 1975by the
sole arbitrator Prolessor R.-1. Dupuy in the case of Texrrco-Calnsiriricv. Libyan
Government (see JDI, 1977,p. 328).
78. Declarations of acceptance of the compulsory jurisdiction of the Court

are of the same nature as these clauses. and can under no circumstances be
tcrriiinated in the absence of an express provision to that end.
79. Moreover, the practice with respect to optional clause declarations in-
dicates that thev niav bç modificd or terminated onlv when such a rizht is re-

nounce or amend their declarations of acceptancéof the compulsory jurisdic-
tion of the Court if such a right were automatic or could be considered to be
implied by the very nature of the declarations. Evcn Honduras, in its "new

declaration" of 22 May 1986.
"reserves the right al any time to supplemcnt, modify or withdraw this
Deciaration or the reservations contained therein by giving notice to
the Secretary-Gçiieral of the Unitcd Nations".

But, if this right were inherent in any declaration, thc stipulation would be
tolally superfluous.

80. Moreover, Honduras is now claiming the right of modification or par-
tial withdrawal that it vigorously challenged in the case of El Salvador. In
1973 El Salvador sought to replace its 1921 declaration, ratified in 1930 and
made for an indefinite term, witli a ncw and more restrictive acceptance. The
Honduran Foreign Affairs Minister protested as follows:

"Leadine authorities oii international law take the oosition that a

na1declaration and that. accordingly nerv reservations cannot be made
unless this rzquirement has beçn fulfilled.
To say otherwise would mean accepting the notion that a State can
unilaterally terminate ils obligation to submit to the jurisdiction of the
Court whenever that suits its interests, thus denying other Statcs the right

to summon it before the Court to seek a settlement of disputes to which
they arc parties. This could well undermine the universally applicable
principle of respect for treaties and for the principles of international
law; [there follows a paragraph on Paraguay's attempt at unilateral with-
drawal of its declaration in 1938and the protests that this aroused].
For the reasons stated above, my Government challenges the de-
claration bv which El Salvador seeks to revokc and reolace its orieinal
<1c.c1.ir3iiiii'c~ptin- thc luri~iiiciii,n ,ih~ <.,,iiri \iii..Cihc ncuJC~I.I-
r..+lh)n1,iii~pr,~pcrI),ii.~Jc, hcncc c~tni~ilcielyldckti~c III!dli,Iil!. .,n.I
\iiiulJ ,ci.ii>ri.icdcrit ~rriiidi~iaicithc *t.il>ilii>iIli:Ic,:.i~ii.;iiiiiii~iii~
established by the intérnational community and to the effective exer-

cise of the right of States to settle their disputes under the guarantee
provided by the highest judicial body so Carconceived by man." (Lettcr
of 21 Junç 1974,text in Shabtai Rosenne, Doc~rmrnlarionun rhe Intrr-
narionol Coilrr ofJusrice, Sijthoff and Noordhoff. Alphen, 1979.11.362.)304 BORDER AND TRANSBORDER ARMED ACTIONS

81. In that letter. Honduras went on 10 set out its own thinking on this
question inore broaclly:

"We deem it appropriate to note in this connexion that my country.
faithful Io its tradition of total resoect for international rules and oroce-
dures. has accepted the Statuts of'the Court without reservations Lf any
kind. since ilrecognizes that such institutions represent the most appro-

priate meiins of <ettling disputes between States; we would also'iote
that. with profound faith in the principles of law, it has always complied
with the arbitral awards or judicial decisions rendered in the disputes
which it has submitted for settlement, rcgardless of whether the Court
found in ils lavour." (Rosenne. op. cil.. at pp. 363-364.)

82. Ths rules of general international law codified by Article 56, para-
graph 1, of the Viciina Conventiori on the Law of Treaties applied to the
present case mandate rcjection of the "new declaration":

(a) it i.cestablished that it was nbt the intention of Honduras to subject ils
1960declaration to denunciation or restriction -as both the actual tex1and
the letter of 21 June 1974 from ils Foreign Affairs Minister demonstrate so
unequivocally;
(b) more gcnerally, since no right of denunciation or withdrawal can be
deduced from the nature of the declarations of acceptance of the compulsory

iurisdiction of the Court. in the absence of such an intention manilested al the
time the declar;ition was made, no State - including Honduras- can modify
or withdraw a declaration made for an indefinitç term.
83. Thus, the purported "new declaration" of Honduras of 22 May 1986,is

invalid.

B. In Any Eveni, the Change Adnpted by Honduras Cannot Be Invoked
againsl Nicaragua

84. Even if Honduras could terminate or modify its declaration, such a
change could no1 be invoked againjt Nicaragua in the circumstances of this
case.
85. Again, the gcncral principles of the law of treatics as codified in the

Vienna Convention arc relevant. Article 56 (2) provides: "2. A party shall
give not less than twclve months' notice of ils intention to denounce or with-
draw from 11trenty under paragraph 1.':
86. Like al1the provisions of Article 56, paragraph 2 is ;Idirect application
of the principle of good faith, and codifies al least the principlc of the rule of
customary law. Professor Paul Reuler suggests the special rclevance of this
principle in Inter-Anierican law:

'*Thetime-limit laid down iii Article 56, paragraph 2. is based on that
in the Havana Convention on the Law of Treaties (Sixth International
Conference of American States, Final Act. Havana. 1928,p. 135.)"' (In-
frodircfiotrart droif des frairés, PUF. 1985. p. 163: sec also Taslim O.

Elias, The Moclerr~ Low of Treufies,Oceana Publications, Dobbs Ferry.
1974,p. 106.)

'Lc dL'I;cilir:tI'.iriic5h.plir.igi;ipI?.c\iiii\pirJc 1.);un$~.nil.)Jc 1.7Il.tv.mr
wr ICJr%> ~l>lr.t~i;,(St~lI~t~~~n.ti~~~~.imfcrcn.'c~~f,\nkr~~~ S l~~le. ~n.i\:l.
IL:H:,rsnc. L92h.p. 1351 " COUNTER-MEMORIAL OF NICARAGUA 305

The one-year period of notice is the same as that in Article 17of the Havana
Convention.
87. As early as his second report to the ILC on the law of treaties, Sir
Gerald Fitzmaurice, describing the law in force, pointed out that the denun-
ciation of a trcaly which was silent as to its duration could only take effect

after "reasonable notice" (ILC Yenrbook, 1957, Vol. II, pp. 34-35). The same
principle was rcferred to by Sir Humphrey Waldock, who çxplained il by the
need 10 promote stability in contractual relations and to preserve the rights of
the other parties 10a treaty. ("Second Report on the Law of Treaties". ILC
Yenrbook, 1963, Vol. II, pp. 68-69; sce also p. 202 and ILC Yearbouk, 1966,
Vol. II,p. 274.) No membçr of the Iiitcrnational Law Commission called into
question the validity of the principle nor the reasonableness of the period of
notice adopted. The only comment was by Mr. Lachs who proposed that the
lime-limit of 12 months should be rxrendeti if requircd by the naturc of the
rights and obligations provided for under the treaty. (ILC Yenrbook. 1963,
Vol. 1.p. 240.) The text was adopted without any changes in the Vienna Con-
vention and without any objectioii by any member of the ILC or by any State.
(Sçe ILC Yenrbook, 1979. Vol. 1,p. 225; Vol. II, Part 1,p. 148; and Vol. 11,

Part II, p. 177.)
88. The Court itself stated clearly that the requirement of reasonable
notice of a denunciation is a well-established principle of the Iaw of treaties,
indeoendent of the 1969 Convention:
"A lurther gcneral indication as to what those obligations may entail
is to be found in the second paraeraph of Article 56 of the Vienna Con-
vention on the Law of Treatici and the corres~ondine urovision in

zations. Those ~rovisions .soecificallv orovide that. when a rieht of
denunciation is'implicd in a trialy by réaion of its nature, the eGrcise
of the right is conditional upon notice, and that of no1 less than twelve
months. Clearly, thesc provisions also are based on an obligation to act
in good faith and have reasonable regard to the interests of the other
party to the treaty." (Inlerpretntionof the Agreementof25 March 1951
betweenrhe WHO nnd Egypl, I.C.J. report.^1980, pp. 94-95; sec also
p. 96 and the separate opinion of Judge Sette-Camara, ibid.,p. 186.)

89. Even apart from the analogy with the law of treaties, a reqnirement of
reasonable notice follows necessarily from the principle of good faith appli-
cable both to treaties and Io unilatcral declarations by States. Professor Eric
Suy writes:
"When an obligation has been assumed unilaterally by a State and

has been broueht to the attention of other States dirçctlv concerned.

dence in interna6onal relations. The rule no'ctnsirntservnndn or. to ex-
tcii.it, ,c<~pc111'r.ul., th..[ i~l>lir.itidn\muit hz ir.,pr.:tr.J. 1sth' cqtrncr-
ridn: iiit11i.\rh~,lc\!\tern <ifci1111r.i:tu;iIintcrii;iiiiin.~l1r~litiiin,
To consider that conventions or treaties arc binding onlyinasmuch as
based on a specific meeting of the minds and to deny that unilateral
comniitments arr binding since the intention behind them is not
matched by a similar intention evinced by the other party or parties,
is to be over-formalistic and to lose sight of the very essence of al1306 BORDER AND TRANSBORDER ARMED ACTIONS

legal rules, namely the regulation and harmony of relations between
parties." (Les actes jirridiqrres irnilat6ruii.ren droit international public,
LGDJ, Paris, 1962, p. 271; see also Elisabeth Zoller, La bonne foi en
droit internationalpublic, Pedone, 1977. pp. 283 et seq.)'

90. The International Court of Justice supported this analysis in its fa-
mous pronouncement of 1974:

"lt is well recognized that declarations made by way of unilateral
acts, concerning legal or factual situations, may have the effect of crea-
ting legal obligations. Declarations of this kind may bc, and often are.
very specific. When it is the intention of the State making the decla-
ration that ic should become bound accordine to its tcrms. that inten-
tion confers on the declaration the charactçr of a legal undertaking, the
State being thenccforth legally rçquired to follow a course of conduct

consistent with the declaration.
...................................
One of the basic principles concerning the creation and performance
of legal obligations, whatever their sourcc, is the principlç of good faith.
Trust and conlidcnce are inherent in international co-operation, in par-

ticular in an agç when this CO-operation in many fields is hecoming in-
creasingly essential. Just as the very rule of pacta siint servnnda in the
law of treaties is based on good faith, so also is the binding character of
an international obligation assumed by unilateral declaration. Thus in-
terested States may take cognizance of unilateral declarations and place
confidçnce in them, and are entitled to require that the obligation thus
created be respectcd. (Ni(c1earTests cases, I.C.J. Reports 1974, pp. 267-
268 and 472-473.)

91. This analysis was reiterated ten years later (Military and Paramilitary
AcNviries in and agirinsrNicaragua. Jurisdictiori atid Admissibility, I.C.J. Re-
ports 1984, p. 418). It gives rise to important concrete consequences, in regard
to the possibility of withdrawing from obligations assumed under such unila-
teral declarations:

"The Court finds that the unilatcral undertaking rcsulting from thesc
statements cannot bc interpreted as having heen made in implicit reli-
ance on an arbitrary power of reconsideration." (I.C.J. Reports 1974,
pp. 270, 475.)

"However. the unilateral nature of declarations does no1 signify that
the State making the declaration is free to amend the scope and the con-
tents of ils solemn commitments as it pleases." (Military nad Parrrmili-

'"Onne voit pas toujours pourquelle raisonune obligation assumée unilatéralement
par unEtat. unc fois qu'elleest arrivéà laconnaissance des Etats directement inté-
ressésetauecçux-ciontdémontrenar leurattitudeou'il, ~ ,v~ ~ ~ . ~ ~itsusceotihle
d'êtremddifiéeou annulée de la meme fason s'ilsmetiaient la sécuritdes rap'ports
internationaux à l'épreuve.La norme pactn srtnlrerva,tdu ou. pour en étendrela
portée,lanorrnç sçlon laquelle lesengagements doivent Ciretenus,est lacléde voiite
de tout le système des rapportsjuridiques internationaux sur le plan contractuel.
Considérerles conventions outraitéscomme obligatoires pourl'unique raisonqu'ils
se iondent sur la volonté concordante de certains sujets de droit, en refusant dc
reconnaître quelque valeur obligatoire aux engagements unilatéraux parceque la
volonténeseraitpassoutenue parunevolontéconcordante,c'esttémoignerd'un fur-
malisrnetrop rigidequiperd devuel'essencemêmede toute réglementation, à savoir
lasécuritiel I'harmanicdes rapportsentrc les sujets." COUNTER-MEMORIA OLF NICARAGUA 307

rary Acriviries Li and agoirisr Nicaragira, Jirrisdiction and A<lniissibiliry,
I.C.J. Reporrs 1984. p. 418.)

92. The Court stated explicitly in its Judgment of 26 November 1984that
reasonable notice was required before withdrawing from optional declara-
lions of indefinite duration:
"Hui IIICrighl i,fiiiiiiieJi;il~ tr.rniiii;ii~Jccl3r;iiiuns uitli inilcfi-
nire Jur:tiitin is i;ir Ircirne>rnl~lt,hIt.:i(>pc;ir,fr<m th<'rr'quirr~nienic

of zouJ i.iith ih;it ihev >hould I>Li.rc.iicdIn ;in;il<,c\,.ai<cir<l1,)thc
la<of treaties. which iequires a reasonable CimefofiithdrawalTrom or
termination of treaties that contain no provision regarding the duration
of thcir validity." (Ibid.. p. 420.)
93. The separate opinion of Judge Mosler is even more explicit:

"It may be open to doubt whether the Nicaraguan Declaration can
be terminated with legal effect immediately on notice. or only after a
lapse of a certain timc ;ifter such notice. Article 56 of the Vienna Con-
vention refers to the 'naiure of the treaty', or envisages a twelve
months' notice. Applying the same ideas by analogy to the 'consensual
bond' effected by declarations under the Optional Clause. the 'iiature'
of the bond is characterized by the equal significance of the obligations.
This rcsults from Article 36. paragraph 2. without any special reserva-
lion being necessary as provided for in paragraph 3 of the same Article.
The Court cmphasized in the case of Rigtirof Passage over in di ai^ï'erri-
rory (Preli~rri~iarObjecrions) (I.C.J. Reporrs 1957,p. 145). that the prin-
ciple of reciprocity forms part of the system of the Optional Clause. It

does not follow from the 'nature' of an 'unconditional' declaration that
ilmay be terminated ai any time and wilh immediate effect. Article 56
of the Vienna Convention shows - and here again an analogy is sug-
gested - th;it the termination of an obligation mus1be governed by the
principle of good faith. Withdrawal without any period of notice seems
to me no1 to correspond with this principle if a declaration has been
made explicitly unconditioiial." (I.C.J. Reports 1984. p. 467.)

94. In ils Judgnient. the Court said that in that case the question of what
reasonable period of notice would legally be required did not need to befur-
ther examined. (Ibi<l..p. 420.)
95. The same is probably truc here: Although the "new declaration" was
deposited with the Unitcd Natioiis Secrctary-General on 22 May 1986.he did
not circulatc it until 30 June. The "reasonable lime" could not begin to run
beforc that date. (Cf. Sh. Rosennc, The Law and Pracrice of rhe Inrernuri»nal
Coi<rr,Sijthoff. Leyden, 1986. ;it p. 471.) The Application in the present
case was filed on 28 July 1986,orily four wccks after the circulation. Surely, a
reasonable time had not elapsed by then.
96. Withoui accepting absolutely the period of 12 months providcd Cor
under Article 56. paragraph 2, of the Vienna Convention, the Court h;is said
that 12months is an indication of what would be a rcasonable period:

"Some indications as Io the possible periods involved, as the Court
has said. c;in be seen ... in Article 56 of the Vienna Convention on the
Law of Treaties and in the corresponding article of the International
Law Commission's draft articles on treaties betu,een States and interna-
tion;il organizations or between international organizations." (Inrerpre-
rolir~~oifrhe Agree~~ret~orf25 March 1951beiween rtie WHO and Eg,vpl.308 BORDER AND TRANSBORDER ARMED ACTIONS

I.C.J.Reports 1980,p. 96. See also the separate opinion by Judge Sette-
Camara, I.C.J. Reports 1980, p. 187.)

What is more. these provisions present this period as a minimum - "nor less

thon twelvernonrhs'norrce .. .".
97. Another indication of what "reasonable notice" should be taken to
mcan in this instance was given by Honduras itself when, in 1974, it chal-
lenged the withdrawal by El Salvador of ils declaration of 1921. This with-
drawal was effected on 26 November 1973. and Honduras protestcd on 21
June 1974, soine seven months later. It is thus clear that at that date, Hon-
duras did not helieve that a reasonable period had elapsed. The same mus1
necessarily apply in the present case.
98. In any event. "what is reasonable and equitable in any given case must
deoend on its oarticular circumstances" iibid.).Tt is essential that. in each
c:i~ <ifihii i)l>c.thc n.,ticc gi\r.\h<>iilhi \ufiicicnt ICI <<iiiilwith ihc.r,~iri~

/.. ,i <liich th^.ri.cluirc,iiicniI<,rrc;,s.~ii.îhlcnot15I>a\cJ. ih.it i, :illi,ii
the other States concerned to take appropriate measurcs.
99. Pursuant to the Optional Clause, the essential consideration is as fol-
lows: a State making a declaration for an unlimited period "offers" the other
States parties to the Statute of the Court the permanent opportunity to settle
in law anv disnute thev mieht have with it. This commitment would be devoid

against il.
100. Superficially, the question might be thought analogous to that posed
when a Statc declares its acccptance of the compulsory jurisdiction of the

Court and immedialely thereafter files an application against a State having
earlier undertüken the same commitment (Right of Passageover Indian Ter-
ritory,I.C.J.Reports 1957). It might be thought that the solution adopted there
could be applied to the present case. However, as Judge Mosler pointed out,
any analogy betweeii the two situations is extremely misleading (Milirary and
PurorniliraryAcrivities in and againsrNicnragua, I.C.J. Reports 1984, p. 467
(separate opinion of Judge Mosler)). First of all, Article 36, paragraphs 2 and
4, of the Statute contains clear provisions leaving no doubt that such declara-
tions take immediate eifect upon notification. The Statute makes no such
provision in the cvent of the withdrawal of such a declaration. Sccondly, and
above ail. a State that withdraws a declaration is in a completely different
situation frnm a State that makes one: the latter undertakes a commitmrnt in
~ ~-~~~
compliance with the spiritand letter of the Statute and the United Nations
Charter; the former, on the other hand, is endeavouring lo withdraw from an
oblieation that il has assured other States it will abide bv

firmed in 1974that il rccognized the Court as constituting "the most appro-
priate means of settling disputes between States". (Letter from the Minister
of Foreign Affairs of Honduras, dated 21 June 1974.para. 81. sirpra.)
102. At the very least. a State in such a situation should no1 be permitted
to oppose the jurisdiction oi the Court, to which it freely consented, when
another State, having a dispute with it at the time of the denunciation, takes

al1rîasonable steos to brine the matter oromotlv before the Court.
103. Here again, il is do;btless no1nLce~s&~io ask what might, in the ab-
stract,constitute reasonable notice in such a situation. It is enough to observe COUNTER-MEMORIAL OF NICARAGUA 309

that il would be ncither "reasonable" nor equitable to deny that the Court
had jurisdiction in the circumstances of the present case:
(i) as will be shown below, a dispute had already arisen and was still in
existence between Nicaragua and Honduras al the time when the latter de-
cided to amend its declaration, on 22 May 1986 (sec Chap. 5; paras. 235-283);

(ii) the "new declaration" hy Honduras was only notified to the States
parties to the Statute by the Secretary-Gcncral of the United Nations on 30
June 1986; it is therefor only as from that date that notice began to run (see
para. 95, sitpra);
(iii) by filing an Application on 28 July 1986, namely within a period of
days. Nicaragua has clearly shown itself to be reasonably diligent in this mat-
ter.

104. Froni whatever angle the question is examincd, it isquite clear that the
period between the time when Honduras claimed to have withdrawn from the
sysleni introduced by the Optional Clause in Article 36, paragraph 2, of the
Statute and the date on which Nicaragua launched ils Application did not
amount to "reasonable notice". Thus the "new declaration" cannot be invoked
against Nicaragua. PART II. JURISDICTION UNDER THE PACT OF
BOGOTA

CHAPTER 2

ARTICLE XXXI OF THE PACT OF BOGOTA
PRO\'IDES A SEPARATE AND INDEPENDENT BASIS
OF JURISDICTION IN THIS CASE

105. The Application of Nicaragua also maintains that the Court has juris-
diction in this case under the provisions of Article XXXI of the Pact of
Bogoti, to which bath Honduras and Nicaragua are parties. Article XXXI, in
Chapter Fivc of the Pact entitled "Judicial Procedure", provides:

"ln conformity with Article 36, paragraph 2, of the Statute of the
International Court of Justice, the High Contracting Parties declare
that the? rïcoçnize, in relation to any othïr American Statc, the juris-
diction of the Court as compulsory ipsofncro, without the necessity of
any special agreement so long as the present Trïaty is in force, in al1dis-
putes of ajuridical nature that arise amongthem concerning:

(a) the interpretation ofa treaty:
(h) any question of international law;
(c) the existence of any fact which. if established. would constitute the
hreach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of
an international obligation."

The present case in\rolves a legal dispute between two parties to the Pact con-
cerning the interpretation of treaties and questions of customary internatio-
nal law. (Case concïrning Milirnry orrdPurfrmiliruryAcriviriesin unfl ugairisf
Nicurug~ra(Nicliru~rto v.United States),Jirrisdicrionund Ad,,zissibility,I.C.J.
Reports 1984,pp. 392,431-438. See also Chapter 3, infrn.)It thus falls unam-
biguously witliin th<:provisions of Article XXXI.
106. As discusscd in Part 1.Nicaragua and Honduras have both made dec-
larations subrnittinc to the iurisdiction of the Court under Article 36 (2) of
the Statute. In 196, ~ond;ras entered a '.new declaration". To this
Nicaragua's Memorial has argued that the "new declaration" is no1 applica-
ble to ïhe uresent case. and t6at iurisdiction is therefore oresent on the-hasis
of the tw6 coinciding Article 36 (2) declarations. If the' Court agrees with

Nicaragua's submission on that point. there is no need 10g. further because
jurisdiciion is established.
107. If. on the other hand. the Court is not satisfied that the 1986"declara-
lion" is inapplicable so that jurisdiction cannot properly be founded on Arti-
cle 36 (2). it is Nicaragua's position that Article XXXI of the Pact of Bogota
provides a wholly indepcndent basis of jurisdiction. To this Honduras replies
that the 1986reservation also modifies and limits its amenability to jurisdic- COUNTER-MEMORIA OLF NICARAGUA 311

tion under Article XXXI of the Pact of Bogati', and that in any case resort to
the Court under the Pact is subject to the condition of prior exhaustion of the
conciliation procedure. This position cannot be sustained.

A. The Purported Reservation of Honduras to the Pact of Bogota Was Not

Made al the Time of Signature or Adherence to the Treaty and 1sTherefore
lueffective to Vary the Obligations of Honduras under the Pact

108. In the context of a declaration under Article 36 (2) of the Court's Sta-
tute, a r~ ~ ~ation is a statement limitine the scooe of the decl~r~ ~ ~tate's
submission to jurisdiction. 11may be madl at the lime the State first makes ils
declaration. However, as discussed in Part 1, supra, if the right to alter or

terminate the declaration is reserized exoresslv or bv imolicathn. a resrrva-
tion limiting jurisdiction may be made ;nila&rally by the declaian1 al any
subsequent timc,on reasonable notice. Such a modification of the declaration
operaïes to bar the assertion of a clziimcovered by the reservation if it takes
effect before the Application is filed. (Righr of Passage over Indian Terrifory,
Preliminnry Objrciions, I.C.J. Reports 1957, pp. 142.143.)
109. Although Article XXXI, in its main features, is cas1 in the same terms

as Article 36 (2) of the Statute of the Court, it is not a unilairral submission to
jurisdiction as is a declaration under the Optional Clause. It is a provision of a
multilateral treaty. As such, it is a binding obligation as between any Iwo par-
ties to t~ ~ -~ ~ ~udee Jiménez de Aréchaea has said that "at most the cited
Article XXXI of thc~act of Bogoti does &t constitute, in spite of its text, a
strictap~lication of the system of the optional clause"'. Instead, the obligatoq
compeiènce of the court under that provision is bascd "no1 in the optionil

clause properly (art. 36, 2) said hut in the Conventions and Treaties in force
(art. 36, 1)"'. (Cited in F. Fernirideï-Shaw, La Organizacibn de los 6,~:srados
A~~lericanos,Madrid, 1962, p. 411.) The Pact is listed in the Yearbooks of the
Court from 1948 Io 1962 under thc heading "Other Instruments", not "Accep-
tance of the Compulsory lurisdiction of the Court" (see I.C.J. Yearbook 1947-
1948, p. 143). and since 1962 under "Chronological list of other instruments
governing the jurisdiction of the Court". rather than "Declarations recogni-

zing as compulsory the jurisdiction of the Court" (I.C.J. Yerirbook 1961-1967,
p. 104).
110. Unlike the situation with respect to unilateral declarations undcr
Article 36 (2) of the Statute of the Court, a party may no1 alter or vary ils ob-
ligation under Article XXXI by its own unilateral act, any more than a party
to the Convention on Diplomatic Privileges and lmmunities could unilri-
terally modify the application to itself of the compromissory clause iiithat

agreement. Thus. 1-Ionduras's "new declaration" and its "reservations" cannot
affect its amenability to suit under Article XXXI.

Honduras's nea declarationwas notiiird to theSecretaryGencral ofthe Organization
of American States on 22 May 1986.'iicaragua entcred a protest pointing out that the
attcrnptedreservatian "hasnojuridicaleffectwhateverandconstitutes a grave violationof
the Pact ofBogota"(NotefromMinister ofForeignAfIairsofNicaraguato theSecretary
Genrriilofthe Organization ofAmericanStates,15 May 1987 (Nicaragua's Annex22)).
Originaltex! inSpanish: "en rigor.elcitado ArticuloXXXI delPactode Bogoti no
conntituye.prse a sutexto, una aplica<:idnestricta delsistemadela clausulaopcional".
'"No en laclausulaopcionalpropri;imrntedicha(art. 36.2).sino en lasConvenciones
y Tratados vigentes(art. 36, 1)"312 UOKDBK AND I'KANSUOKDEK AKMEI) ACI'IONS

III. In the contcxt of a bilateral or multilateral treaty, a "reservation" is a
derogation from thc obligation of thc trcaty and mus1be made at the time of
signature, or in any cvcnt when the party adheres to the treaty. Thus, Article

2 (1) ((1)of the Vierina Convention on the Law of Treaticsdcfincs a rcscrva-
lion as
"a unilateral slatcment. however phrased or named, made by a State.
when signing. ratifying. acccpting, approving or acceding to a treaty,

whereby it purports 10 cxclude or modify the legal effect of certain pro-
visions of the trcaty in their application 10 that State." (United Nations
Conference on the Law of l'reaties. doc. AiCONF.89/27,22 May 1969).

112. The purportcd Honduran reservation fils pari of this definition very
wcll. It forms part of a unilateral statemcnt that "purports to cxclude or
modify the legal effcct of" Article XXXl of the Pact of Bogot5 "in [ils] appli-
cation Io that Stzite". But unlike the reservations to the Pact by Argentina. El
Salvador. the United States and Nicaragua itsclf, they were not made al the
time of signature or ratification. and thus cannot be effective to modify the
obligations undertaken by Honduras.
113. Article 2 (1) ((1)of the Vienna Convention expresses an unvarying rule
of cuslomary international law. about which no Statc or author has ever. to the

knowledge of Nicaragua, expressed the slightest doubt. The rule conforms to
the normal pr;ictice of multinational depositaries. As long ago as 1950.the Re-
port of the Sccrctary-Gcncral of the United Nations on practiccs of the Secre-
tariat with reeard Io rescrvations stated: "A State mav have a reservation when
signing. ratif;ng or acceding 10 a convention.'' (~lf372. para. 46.) In a 1976
Aide-MCmoire on the Practicc of the Secretary-Gencral as depositary of multi-
lateral treaties with respect to reservations and objections. thé~egd Counsel-
lor of the United Nations stated that the practice of the Organization in regard
to the definition of "reservation" follows Article 2 (1) ((1)of the Vienna Con-

vention. (Ui~iredNoriofis Legnl Yeurbook. 1976. p.218.)
114. So also with the Oreanization of American States. In ils reolv 10 a
questionnaire from the unicd Nations Secretary-General in 1962.~~OAS
asserted that it complics very strictly in ils practice with the forenoine princi-
des. Indced. il does'not even consuit otheriienatorics to thc trcaïv unlcss the
;escrvation is included in the instrument of r~tification. (1965 ILC Yenrbook.
Vol. II. p. 90.) Nor does il impose any lime-limit for parties to lodge objec-
tions to proposcd rïscrvations: (~birl..~. 94.)'
115. The rcquirement that reservations bc contcmporancous with signing
or adherence 10 a treaty has a special place in the law of the Western Hemi-

sphcre. Article 6 of the Havana Convention on the Law of Treaties provides
for reservations onlv ai thc lime of ratification. See also Resolution XXlX
of the Eighth 1ntcri;ational Conference of American States at Lima in 1928.
Resolution X of the Inter-American Juridical Committee (1959) is even
slricler:

"1. In the case of ratification or adhcrence with reservations, the
ratilying or adhering Statc shall send 10 the Pan American Union be-

'In ihc prc\cni rd\cihc Srïrrt.ir)C;encr;iltifihrOAS Ii.i, iisir'iri,~licJihc3ignj-
i8irir.s1.3iht8:~01 Usg,iiiuiih rcspcriio ihcpurportcJ rr.wrv;iii<iiiof H<>n<lur.8<\.i;:i-
I~CU~ha, nc\irihclc~*inir.rni~~rJ iir<thiccii.inwtit\c;.r<iinc niiiili::,it<,ihr Sec- COUNTEK-MliMORIAL OF NICARAGUA 313

fore depositing the instrument of ratification or adhercnce the tex1 of
the reservations it proposes to make . . .
II. Reservations made to a treaty at the time of signature shall have
no effect if they are not reiterated before depositing the instrument of
ratification."

116. Needless to say, the main authors who have studied the question of
rcscrvations to treaties are unanimous in support of the rule that reserva-
lions must be formulated "when signing, ratifying, accepting, approving or
acceding to the treaty". (See, e.g.. W. W. Bishop, Jr.. "Reservations to Trea-
ties",RCADI, 1961,Vol. II. p. 252; T. O. Elias,TheModern Law of ï'reuties,
Dobbs Ferry, N.Y., 1974, pp. 32-33; P. H. Imbert, Les ré.servesaux rrairés

frirrlfilarérarParis, 1979, p. 164; J:M. Ruda, "Reservations to Treaties",
RCADI, 1975,Vol. III, pp. 114. 146, 193; M. D. Kappeler, Les réservesdans
lesrrairr'sVerlag für Recht, 1958,p. 24; E.Jiménez de Aréchaga, EI Derecho
Intern<rciunulCr)ntemporuneo, Madrid, 1980, p. 50; C. Sepulveda, Cltrso de
Derecho lnrernacional Pirblico, 6th ed., Mexico City, 1974, pp. 128.129.)
117. Any attempt by a party to Varythe obligations entered into. after ad-
herence to the trcaty, is simply ;in offcr to amend il. As such it can only be-
come effective in accordance with the trcaty provisions for ~imendnient or
with the consent of the parties. (See Vienna Convention on the Law of Trea-
ties. Part IV, Arts. 39-41.) There are no special provisions for amendment in
the Pact of Bogoti, and the parties have not consented.
118. Honduras seems to attach some significance to the fact that "no ob-
jcction, either from Nicaragua or from any olher country. was raised by any

of the member States of the Organization upon receipt of the Declaration of
Honduras" (Memorial, at pp. 77-78, supra: sce also pp. 56.79,supra). This ob-
servation is incorrect in point of fact: Nicaragua entered an objection to the
purported reserv;itiou on 15 May 19x7. by note from ils Minister of Foreign
Affairs to the Secretarv General of the OAS (Ann. 22). Althoueh the Secre-
tary General circulate2 the purported reservàtion to ihe permanent Repre-
sentatives of the niember States (Mernorial. Ann. 41). this was in no sense a
notification to the contractine siales with a view to their takine oart in a
"decision as to the action to bi taken in regard to such proposal" is'required
by Article 40 of the Vienna Convention. And in any event, the silence of the
oarties cannot be taken as such a "decision" or-as the "neeotiation and
conclusion of [an] agrecmcnt for the amendment of the treaGn within the
rneaning of that Article.

119. Thus the purported new dcclaration of Honduras cannot take effect
either as a reservation or an amendment to the Pact of Bogota. The obliga-
tions of Honduras under the Pact remain iinimpaired by il.

B. Article XXXl Estahlishes a Binding Obligation to Suhmit tn the Junsdiction
<ifthe Court with Respect to Disputes in the Enumerated Calegories between

Parties to the Treaty, lndependent of Any Other Unilateral or Bilateral
Undertaking of Any Pÿrty with Respect to Such Disputes

120. Honduras contends that Article XXXI itself was meant to extend
only to cases where the respondcnt State is otherwise subject to the jurisdic-
tion of the Court by virtue of a scparate declaration filed under Article 36 (2)
of the Statute. On this reading, Article XXXI is not an independent and bind-
ing obligation, but simply an agreement to resort to the Court when the par-314 BORDER AND TRANSBORDER ARMED ACTIONS

lies to the dispute were otherwise obligaied or disposed to do so. (Memorial.
at pp. 65. 75,srrprci.)' This position is inconsisicnt with the language of Arti-
cle XXXI. with the purpose of the Article, with the rr<ivauxpr6paraloires. and
with the understanding of the partics at the lime the Pact was signed. It is
rejecied by every publicist who has written on thc Pact of Bogota. They no1
only regard Article XXXI as a subniission to jurisdiction independent of any
declaration that a State may have made undçr Article 36(2) of the Statute of

the Court, but many point to this indçpcndcnt acceptance 01 compulsory
jurisdiciion as one of the prime achievemcnts of the Pact of Bogot5. (See
paras. 124-126. 158. infra.)

1. The Langirage of ike Te.rf

121. The obligation of Article XXXl is expressed in categorical and
unqualified terms. In contras1 to Article 36 (2) of the Court's Statute, which
invites a gcneralized declaration recognizing the jurisdiction of the Couri
(subjcct of course to such reservations as the declaring State may wish to
assert). Article XXXI is an underiaking of "thc High Contracting Parties".
It is limite~ r~rtioneilersonae to "anv other American State". and rnriorie rerfr-
,,ore -50 long ;i.I~L.prc\cni '1cc:!(!. 1) IIiorc~.". RLI ilinip<)\~.sn.) lin111rllllO1l<.

~~riir<~niii<ntli~c:Ituorlci ui C.IIC<SIl\tcJ111,\rtt~Ic36 (2) I\S IIO~C.J~I><>\ LI.II
listed in the ~earhooks of the Court under "Other lnst'ruments", as opposcd 10
declarations recognizing the compulsory jurisdiction of the Court. (See para.
109. siipra.)
122. The Memorial of Honduras says ihat. "Article XXXl of the Pact
authoriscs eacli State, in accordafice wirlr cifrydeclararion made by rlrar Srirre
before the occrirrence of a dispirre, to seise the Court unilaterally" (Memorial.

at p. 65. ,srrprn (emphasis added)). Of course. the iialicized language in ihis
quotation does no1 appear in Article XXXI. It is an invention of the Memo-
rial. If Article XXXl meant what Honduras says ii does. there would have
been no need to include it in the Pact at all. For quite apart from Article
XXXI, any Siatc is ;ilready authorizcd to scize the Court unilaterally "in ac-
cordance wiih siny declaration made by that State before the occurrence of

the dispute". Thus Honduras's position contravenes the general maxim of
treaty intçrpretaiion that the Court should give an operational effect to çvery
r~~vi-~~~~~~~the treatv.
123. Recognition of the jurisdiction of the Court "ipso facto and without
the necessitv of any special agreement" in Article XXXl involves an element
of reciprociiy in chai the uidertaking is made only with respect to other

'TheMernorial ofHondurasseemstosuggestat one pointihai a hilateraor muliilaiernl
agreementamoogStales tosubmit tothejurisdiclion ofthe Courtwithrespecttodispuies
beiween ihem fzillingwithinthe terms of Article 36 (2)wouldbe inconsistentwith the
Statute ofthe Cciurt.Accordingta the argument of Honduras.such an agreementwiiuld
thereforçbe voidunderArticle 103afthe UnitedNationsCharter,ofwhich the Stntuicis
apart. (Mçmorial.ai p. 77,iipro.) The assertcd inconsisiencybetween the compulsory
obligationof Article XXXl and the Statutc isillusory.Allhoughthescope of the Articlc
XXXl submissionisidenticalIothat descrihedin Articlc36(2)of the Statute, the h<i,si.s
forjurisdiciion.asnoled inthe teat,sirprrr,isio he l'ciundinArticle36(l), which covcrs
"al1matters specilillyprovided for . . .in trçatiçsor conventionsin force". Sçe ludge
E.Jimener.deAr&chag;iq,uotedparagraph109.riipro. and thctreatmcntinthe Yerirbook.~
of the Court.(lhid) COUNTER-MEMORIAL OF NICARAGUA 315

uarties'. Nevertheless. acceDtance of the Court's iurisdiction is not oualificd
h! thc phr:ax 'IIIrclatit~iitu;tii!~ithcrSi:jtc Li,..>prrtiqIII#,%,IICh,lih.,~r!~>ii.
II 1 3 2 1hc ~.~ii.'r.liii;iiiic:ipri,cii). imp.lricd h). llii\plii4\c ir
f~inJ:~mcni.~I tg,1112 pr.t:i~:c niin rcwe;t IO rc\vrv~ttlnns III~>ntiun:,l;I.Iu\~

declarations. (See, e:g., Military and' Parumilitury Acriviries i;i and agairrst
Nicara~iia, Jiirisdicrion and Adnlissibility, I.C.J. Reports 1984.) Indeed, that
practice would make little sensc without such a conception of reciprocity. But
the ambulatorv notion of reciorocitv embodied in Article 36 (2). wher.b..the
culn.-id:ncc c~.iI:c<l.ir.iti~~~>~'riic.is"rc.I>01 ihc tom<.in :\I>I>~IC.I~I~IIi~lc~i.
1sno1 houiiJ iii ,\riiclc' XTXI of thr I':a:t Iii\ir.tJ. thc Couri'\ ~iiridi<ti<,n 1,
rccognized once and for al1and without limitation. The absenceof the Article
36 (2) reciprocity principle in the Pact of Bogoti negates Honduras's conten-

tion that Article XXXl permits subsequent "reservations" derogating from
the obligation originally assumed by the Party.

2. Purpose

124. The (undamental purpose of the Pact of Bogoti was to establisli com-
pulsory adjudication. either by the Court or by arbitration, as the ultimate
mode of settlemetit of al1 disputes. whatever their naturc, arising between

American States. The US Delceation Reoort States that "ltlhe most imoortant

lnternirtional ~onh.rence of ~mericu; ~l;?te.~~ ,ashington, 1948,p. 47. See also,
e.g., A. v.W. Thomas and A. J. Thomas. JI., The Organization of American
States. Dallas, 1963, p. 240; A. Herrarte, "Soluci6n Pacifica de las Controver-
sias en el Sistema Interamericano", p. 225, in Secretario General, Organizacion

de los Estados Americanos, Sexro Ciirso de Derecho Iizternricional Organizado
por el Comite JurLdico Internrnericano, 0EAJSer.QIV.C-6, CJI 40, p. 225; In-
ter-Ameriean Institute of International Legal Studies, The Inter-American Sys-
lem, 11sDevelopnient and Strengthetiing, Dobbs Ferry, N.Y., 1966, pp. 78-79;
R. L. Cardon, Lu Solucidn Pacifica de Controversias Internacionales en el Sisre-
mn Americano, Buenos Aires, 1954,p. 75.)
125. The Memurial of Honduras itself recognizes this avowed purpose of
the Pact (Memorial, at pp. 62-63, sriprri). II traces the history of this objective
back to 1826 and the beginnings of CU-operative relations among the coun-

tries of the American hemisphere (ibid., al pp. 61-62. slrprn). The climax of
this effort is described by the Memorial in a statement that Nicaragua nccepts
and that we quote bere in full:
"At the 'Inter-Amcrican Conference on the Problems of W;ir and

Peace', held in Mexico in hlarch 1945, Resolution XXXlV stressed that
the Inter-Ainerican Legal Committee on Peace should

'AlthoughArticleXXXl spcaks of acceptance of jurisdiction"inrelationto anyothsr
ArnericanState",andthus."[el1Pacturioexigeexpresamentelareciprocidad: no ohstante,
creemos que el cornprorniso solo obligacon celaciona cualqiiicrotro Estado amçricana
yrreocepte/a,iiisaobli~acihn,comoindicaclEstntutode laCorte(arl.36, parr 2)". ("The
pact doer not rxpressly require reciprocity; notwithstanding, we believe that the
comrnitmentisonlyohligatory inrelationta anyotherAmericanStatetharacceprl-lliesorne
obligation asthe Statute ofthe Courtindicates.") (R. L. Cardon. Ln Sulr<cibnPncificade
ConrroversiosInternriciunrrle stcelSisrrmaAmeriwno, Buenos Aires 1954.p.77;seealro
F.Fernandez-Shaw, Lo Organiracihri<lelosEsrudusAmericonos, Madrid 1962,p.411.)316 HORIIERAND TRANSBORDERAKMBII ACTIONS

'. . coordiiiate thc continental instruments for the prevcntion and
peaceful solution of controversies in a nianner such that the gradua1
and progressive application thereof shall necessarily result in the
achievemcni of the desired ends'.

Thus in the icrms of referencegiven to thc Committce, rwo of rhe key
ideos had appcarcd which wcrc to inspire the drafting. in successive
draft texis, Of whai was to become some thrcc ycars later the Pact of

Bog0i.l:
- First, the aitcm,t t~ ~ ~ ~ ~ ~ a rationalized svsre~?f~r settlement of
disputes in the light of the lessons learni from attempts made in pre-

vious trcatics. which werc hctcrogeneous. over-numerous and which
had. for the most o.rt. remained-dead letters
- second. and this is perhaps cven more remarkahle, the assignment
to such a sqsiem of the ultimaie purpose of renderine compulsory.
and as iiwére irreversible, the reiouise to solutions that could oniy
be peaceful. Such a system would offer. at the free choice of the
States. a widc range of procedures for resolving disputes." (Mcmorial.
ai pp. 62-63. srrpra (cmphasis in original).)

126. The obicctive "of renderine comoulsorv. and as it were irreversible.
the recourse to'solutions that could>nly be peaceful" is formally embodied in
the OAS Charter ilself, also a producl of the Bogota Conference. Article 25

states in ecncral lems that in ihe case of disoutés that cannot be settled bv
diplomat meeans. "the Parties shall agree on iome other peaceful procedu&
thar will enable iheni Io reach a solution". To implement this general obliga-
lion. Article 26 provides:

"A special trcaty will establish adequate procedures for the pacific
settlement of disputes and will determine the appropriate means for
iheir applicaiiiin. so thai no dispute between American Staies shall fail
of definitive settlcment wiihin a reasonable period."

127 The P:ict of B<ipit.i is thc spccial trcaty cn\.isioiicd in Ariic26 of ihc

0AS Cli:irier. :tnJ the i~hlig:iiiuioiAriiclc 25 of ihc Ch;iricr is reitcr;iicd :iiid
cl;ihor;iicJ :I> ihc ccntral conception of thr. l';ici in r\riiIIc
"[lin the event ihat a controversy arises beiween two signatory states
which. in the opinion of the parties. cannot be settled by direct nc-

gotiations ihrough the usual diplomaiic channels, the parties bind
thçmsclvcs Io use the procedures established in the present Treaty.
in ihc manner and under the conditions provided for in the following
articles.. . ."

128. The Pact priivides for the usual array of voluntary methods of dispute
setilement: good offices. mediation, invesiigaiion, conciliation and so forth.
Specific rnodaliiies ;ire established for each of these. A Party has complete
freedom to select any of these means in an atiempt to settle a dispute with
anoiher Party, and they may use "such special procedures as. in their opinion.
will permit them to iirrive at a solution" (Art.II.Sec Chap. 4. infrli). AI1 this

corresponds with the objective notcd in the Honduran Memorial ihat the
"system would offer. at the free choice of the Staies. a widc range of pro-
cedures for resolving disputes" (Memorial, at p. 63. strpra). But the key fea-
iure of the syslcm is thai a pariy can insist on compulsory settlement of any
dispute. cither by the Court undcr Article XXXl or Article XXXll or by COUNTER-MBMORIAO LFNICARAGUA 317

binding arbitration undsr Chaptcr Five, "if the Court declares itself to be
without jurisdiction to hear and adjudge the controvcrsy . . ."(Art. XXXV).
129. In support of its interpretation of Article XXXI Honduras argues
that il is hardly thinkable for a State accepting the jurisdiction of the Court
under the ootional clause subiect to certain rcservations (and with thc oss si-
htIii\ ut intcrpahiiig tiirilicr r~~sc~r~tt11, i11.~Ittt~rtint^.,1,).i..:'pt.IIlhc %:,me
tiiiic .in uiiliniitc.l ,rhli~~tiiin ui ]uJi:i:il ~ritI~~iiiciitIur\.iiiicr\p~.. <)Iciin-

tri,vcrric\ 1inJL.rtlic l'.lit. I\Iciii.~ri:.ai..>i?75-77. >r,.~rii,
130. Honduras acknowl'edges that:
"such a dualitv of schemes of recoenition is theoreticallv not inconceiv-
able. For enample, many cases exicin which, in parallel'to a declaration
under Article 36, paraaraph 2, made unilaterally and rendered subject

to reservations, a Statëha', agreed tn bind itselfwithout reservations in
ils relations with another State,for example in a treaty of friendship and
co-operation. The Srate concerned dues so becarise, having regrrr<lto the
natrrre of the relationship thot it has traditionally /rad witllthe other Stute, ir
takes the view rhat there isno point in restricting the cornpetence of the
Coirrt. . . .(Ibid.. al p. 77, sul~ra(emphasis supplied).)

That passage describes precisely the basis on which the American States were
prepared in 1948 to accept inter se a "compulsory and . . .irreversible" sub-
mission tn the iurisdiction of the Court: when in 1945the San Francisco Con-

clause'. Thev conceived themselves as a more homoeeneous communitv.

..
bie and desirable.
131. As Charles G. Fenwick, the Director of the Department of Interna-
tional Law of the Pan American Union said:
"There might be grouncl for not bcing willing Io submit political con-

troversies with non-Americans to the International Court; but within
Our inter-American circle. where we have built uo a soirit of confidence.

vailcd, and that view is the substance of the ?.reaÏy." (C. G. ~enwick,
"Remarks", in The Resi~lrsof Bogotri, Lectirre Series on the Bogora Cori-
ference helrl rit the Pan American Union, May 24, 25 and 26, 1948, p. 38.
See also, cg., 1.M. Yepes, Del Congres" de Partama iila Conferencin de
Caracas, 1826-1954, Caracas, 1955, p. 217.)

13. 1'<>csi(>i th: Ili,niJiir:in i.~>iitcniiiIiat .~iil~~r~qii~r~r,rtt.rv.itiI<i:ln
t>p~~on,tIcl.iu>c,iIc~.l:ar:ttiiitir<,.iutiiiii.~tic.ill~ insi>rp<or.~III~O thc .4rii<l~.
YSXI iihli~.iii~~n iiiiJ~,rthr. Pnct <voiiIJirustr.itc ilic ~iitiiizi~hjr.:ii\c of ih~.I'nct
tco~,rcci.i<~,iiiprclt~~n.tt~h!stcm ~,i~dnipul~ctr!J[~IIIIC~cttI~.~iicnil.ndc:d. th<
tl.iiiJiir;in hlr.in~oii;,l:tckno\ilcd~~.~th:ii

'Indecd, amajoriiy ofthedrlegationsat SanFrancisco. rspeciallythesmaller onçs.would
have prrfrrred a truç compulsory jurisdiction and acceptsd the optional clause as an
alternative only because the Great Powçrsparticularlythe United Statesand the Soviet
Union, wouldhave nat acceptedthe Charter under those terrns.(Seegenerally UNCIO
Doci<nren!sV , ol13.)318
BORDER AND TRANSBORDER ARMED ACTIONS

"[il1 is in effect Articles XXXl to XXXV that hold the system in place
and auarantce. in nrinciple. that a veaceful solution is inevitable. Upon
clos& examinatio;. however, il wiil be found that the sysiem is noi. il
seems, held together so absolutely securely as its promoters had wished."
(Memorial. at-p. 64. silpru.)

133. It is impermissihle. however. for the Court to adopt an inierpretation
of a ireaiy that frustrates its acknowledged principal ohjeciive if a reading of
the tex1 that promoics the objective is fairly available.

3. Travaux Préparatoires

134. The Pact of BogotAwas based on two preliminary drafts prepared hy
the Interamcrican Jiiridical Committee. the firsi in 1945 and the second in
1947. Each of thcse drafts provided for voluntary resort to the International
Court of Justice by agreement of the parties. Thus, Arlicle XVlll of the 1947
draft providcd:

"Noiwiihslandine thu ~rovisions of the precedine. article Icstablish-
III$;<iinpiilsury :irhitr.iti,~iiii~rL.,liitro\crsirr oi .iiiyn,tltircit ir r~c<>g-
iii/iJ ih;it ihc l',nri!cs.11in :igrcciiidiii,Jo xi. iii:istiliiiiit ilicir :ontru.
\.crsic.ICI th< Iiiicrn.iliiiii:il Court ni .lusti~~.iilicn ihev h:i\c ,ii~cplcd
prcviously ils obligatory jurisdiction under the terms niArticle 36 of its

Statutc.
The cnntroversics to which this article is applicable are those rcfer-
ring to the following matters: [listing the four categories appearing in
Article 36 (2) of the Statute of the Court]." (United States Department
of State, Keporr of ilie US Delegotion 10the Ninrh lnrernnrior~alCotiJe-
rence of A~i~ericrriS i mres, Appendix One - Preparatory Docunients.
p. 137.)'

135 'l'hcdr:ili r\riiilc ciiih~idic~ihc 1liindur;in c,mtcnii<,ii LJnder ilihcrc
3..no ohli~:iiii~iiof luJicial srtilcnicnt ai 211 'l'hc~it>r>ihilitvof rccourse t<i the
Court ~~~~~~~~~ ~he eniumerated categories comes about onlv if the Par-
ties :Ire "in ngrccmcnt to do\o" aiid ,ml? ifthe? h.1~ ;iccc[>tcJprcvi,>usly itj
<~hli~;liury ~uri~diciiun".In such ;ic;isc. thc princtplc iifrccipruiii" a> cnibod-

icd iii,\riide 36 (2) uould ;ils<ihe ap~lic3hlc. II thc re\p~~tiJciithiid c~ii~rcd
an applicable resèr;ation before the case was filed, it wiuld vitiate the previ-
nus submission to obligatory jurisdiction required by thc draft Article.
136. The difficulty wilh ihe Honduran position is that the Pact of BogotA
did no1 accept Arlicle XVlll of the 1947draft. On the contrary, ii decisively
rejected the voluntary approach of the draft Article. As the Memorial of
Honduras says there is "a qualitativc leap as compared wiih the aitempis
made in the earlicr lrcaiies" (Mcmorial. at p. 64. suoro). The contrnst be-
i\icr.n ihc \<,luiit,ir? schcnic oi th? iIr;,li ,\rti<le .und th^.pcrcoipic>r!.liarigu;~~\c

i)f ,\rii.lc. SXXl is .iril<ing The rijc:iii,ii 01 the Jr.ltiArii;lc c\.in:cs tlir.uii-
riii\i;~k;il>leiiitcntioi01 the p~~rUc\ h) tllc I',~cttu I~IIIJth~.ni\cIvi\ 11) tihiiiil
legal dispuics to the Court as a matter of positive obligation, without regard
Io any othcr voluntary dcclaration or agreement. Article XXXl is no1 an

'Article XXlll ofthe 1945draftprovidcd:
"lntheevcntthatthepariiestoacontroverry decidetarubmitii tojudicialseitlç-
ment.the court shallas ageneralrule.betheInternationalCourt oflusticc.. .(Ihiii..
at pp. 121. 129.) COUNTER-MEMORIAL OF NICARAGUA 319

agreement to aeree. It is not an incorooration of ohlieations alreadv assumed
inrcciprocal dëclarations of the under ArticÏe 36 (2) at the fime an
application is filed. It is an independent mutual treaty obligation.

4. Conremporaneous Understanding

137. The position that Article XXXI is an independent basis of jurisdic-
tion. not deoendent on and not oualified bv anv declarations oarties mav have
made unde; Article 36 (2). is confirmed by théconduct of ihe parties'at the
time the Pact was negotiated. The United States did no1ratify the Pact, but it

was active in the negotiating process and signed the treaty it the end of the
Bogoti Confercnce. However, it signed subject to thç reservation that
"The acceptailce by the United States of the jurisdiction of the Inter-

national Court of Justice as compulsory ipso fucto and without special
agreement, as provided in this Treaty, is limited by any jurisdictional or
other limitations containcd in any Declaration deposited by the United
States under Article 36, paragraph 4 of the Statute of the Court. and in
force at thc time of the suhmission of any case."

138. This reservation to the Pact was designed Io ensure that the reserva-
tions to the United States declaration of 14 Aueust 1946. dubmittine ta the
('g~~ri',juri~Ji:t;on ~iiJcr :\rtt:Ir. .3012, <>J ihe SI.I!UIL~ %.\.,IJInI)l 1)'.,wcrriJ-

d:n t>\ L'ni1r.J \isi~, ;idlicrcnc~. tiiihr. I1.iiioi Hopi13 1hi qu<ltcd riwri,.i-
Iii,ii\\.<iulJh;,i: txcn iun~.r11~~1~I1 i:~dr\rl~~I~ SXSl t>rcnin1criJc.l. :i\ Iliin-

"Chapter four of the Treaty ('Jndicial Procedure') begins hy incor-

porating acceptance of the jurisdiction of the International Court of
Justice as comoulsorv insu facto and without snecial aereement in iuri-
dical disputes ialling'w~thii;the categories mcitioned in article XX~VI
(2) of the Siatute of the Court (article XXXI) . . . However, [article
XXXII does nor tuke into <rccoiinithe facr thar various stnres in previous
acceprances of the Cocirf'sjrrri>diction under article XXXVI (2) of the
Srrrrirtehave forrn<lil necessary tu place certain limitationr iipon thejirris-

diction thirs occepted. This was the case in respect to the United States.
and since the terms of its declaration had, in addition, received the pre-
vious advice and consent of the Senate, the Delegation found it neces-
sary to interpose a reservation to the effect that the acceptance of the
iurisdiction of the Court as comnulsorv inso facto and without s~ecial
agr~.ciii~ni 1, Iiiiiitr.I h.in! ~iiri~di;tiun;ilor <itlic.Iii~iii;iti~i<,,ni.iiiicJ

ln ;ln! d~~.It,r:,t~<mdc~pth~~<l:)J\ rhr. t.'n~icJSt.~ic>11nJcr sxrti~ldXXX\'l
1-11,>iihr. \;t.,iuictri ihc C'.,uri in i<,rcv :IIitic riiiiiil th^hriihmi\\i.inut
;ni case." (Emphasis added.) (United States Department of State, Report
of rhe US Delegation Io the Ninth International Conference of Arnerican
States, Washington, 1948,p. 48.)

--
'Th: ll~t~~.l~r,t~c~8?,trn.,.l~\,tta.xil~ IInNrJ b1,~it~t<\c.r\.,t.,m.J*"5dpcrflt..>~~,"
(\t.'r~t~~rldlp 7~,1~~~~11 ~~~'I1l~~~~l~~i.'~~I~~~c~II~~~I~,~~J~~~ll~ll~:~~~~l,~~~:~l~~~n~~~~~~

Ib\1IicIliiilc<Si.iir. dilc,!.~ii..ii:Ji.,'.~\\rinlrlicIL\[.iitr.ilii, i.i<>lii.mI:320 BORDER AND TRANSBORDER ARMED ACTIONS

The views of the United States dclegation are especially authoritative be-
cause of the leading role played by the United States in the development of
the Pact.

139. If Article XXXl did no1 incorporate reservations to Article 36 (2)
declarations already existing in 1948when the Pact was signed. riforriori if
would not incorporate limitations on such a declaration made aftcr the Pact
entered into force. like the purported Honduras "new Declaration". The tex1
of the United States reservation tu the Pact bears expressly on this point,
also. Lt applics to "any jurisdictional or other limitations containcd in any
declaration deposited by the United States .. .ur thetinie of the.srih~iii.sof~i
rliecrise"(ern~hasisadded). The italici~edlaneuaee was necçssarv if the United
States reservation tu the ~act was'to he effeziv& tu cuver limit~tions that the
United States might subsequently interpose 10ils Article 36 (2) dcclaration.

5. Tlie Opi~riotrsof Aniericun Jrrrisrsund orher Pirblicisrs

140. Honduras recognizes that "the greater numher of authors. who in fact
represent the majority doctrine on the subject" hold that "Article XXXl oi
the Pact. in referring to Article 36, paragraph 2, of the Statute of the Court.
determines the exteiit of the Court's jurisdiction ratione miirerine" - that is
to Say, without refercnce tu the terms of any unilateral declaration a Party
may have made under the optional clause. (Memorial, at p. 66. sirprri.It is
thus almost unnecessary 10 cite authority for this proposition. Ncvertheless.

we lista few of the pronouncements here to illustrate the uniformity and cate-
gorical nature of the opinions expressed hy the most qualified experts. (E.g..
F. V. Garcia-Amador, "Report 92". in Max Planck Institute for Comparative
Public Law and International Law. Jiidiciul Settlemenlof Inrernririotiol 0i.s-
pitres,New York, 1974: F. Fcrnindcz-Shaw, La Organizacii>ride 10,sE.sroilus
Aniericanos, Madrid. 1963p. 411;A. Herrarte, Solucii>nPoci/ic(r<leI(is CIJII-
iroversia.~en el SisferrraItilerirr~ierico,o20. 225, in Secrelario Gencral. Or-
ganizacion de los Estados Americanos. SextoCiirso de Derecho Inrerniicion~zl
Organizado por el <:onlireJrrr:ilico Interaiiiericono, 0EAlSer.QlV.C-6. CJI
40: Inter-American Institute of International Legal Studies. Tlie /tirer-Anie-

ricari Sysreni,11,sDevelr~1~nre,iiitnd Srrengrhening. Dobhs Ferry. N.Y.. 1966.
p. 79; F. Lavinia and H. Baldomir. I~isrritiirenroJirridicosI>iirii el Mirnre,ii-
r~rierirdeIn Paz enA~~rérici r,ontevideo. 1979,p. 29: R. L. Cardon, LR Soli<-
cion Pocificn<leConrr»versiii.sIn~er~rncion<ile en el SistenioAn~ericuno~ Bue-
nos Aires, 1954, p. 76: H. M. Blackmer. US Policy and rhe 11rrer-Ai~rcricn,~
Peoce Sysfenr. Paris. 1952. p. 180; W. Sanders, Bogori Conference: Ninrlr
Inter,znrional Co~rfere~rceof A~~rericanStates, lnternational Conciliation
No. 442, June 1948. p. 403. And see Judge E. Jiménez de Aréchaga. cited
para. 109, sirpro.) CHAPTER 3

T1IE ICKlSl>lC'l'IO~ OF 'l'HE COCK'I UVI>EH ,\KTICI.b. AXXI OF
l'HF PACI' IS VO'I SIIRJECI 'IO ,\ COVI>Il'IOS PKECI.:I>EYî OF
EXII:\IJSTIOI\ OF TIIk: COSCll.l,\'l ION PKOCESS

141. Alrhough the Nicaraguan Application expressly founds the jurisdic-

tion of the Court on Article XXXI of the Pact of Bogota, Honduras contends
that iurisdiction is defeated bv the failure of the parties to resort to concilia-
tion.'lt contends that this is Gquired by Article XXXII, which provides:

"When the conciliation procedure previously established in the
present Tre;ity 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 ciitit~~d to have recourse to the Tnteri-~ti~na~ ~ ~ ~ ~ ~ ~
Court of Justice in the m;inner pre&ibed in ~rticle 40 of thç Statute
thereof. The Court shall have comr>ulsorv iurisdiction in accordance
with Article 36, paragraph 1, of the Said S&<utc."

142. The text of the relevant Articles, the history and preparatory work of

the Bogota Conference and the writings of publicists combine to demonstrate
that failure of the conciliation procedure is a required precondition only in
cases comine to the Court bv virtue of Article XXXlI of the Pact. and not in
those whercthe Court has Eompu~soryjurisdiction ipxo fncto under Article

XXXI with respect to the categories of questions enumerated in Article 36
(2) of the Statite

A. Comparison nf the Texts of Articles XXXI and XXXll Showsthat They
Are Separate and Independent Modes of Accessto the Court, and Resori to
the Cnnrt under Article XXXI 1sNot Snhjectto a Preconditionof Conciliation

143. The pattern of the Pact as to judicial settlement is established by the

two provisions relating to the jurisdiction of the Court. Article XXXI deals
with disputes "of ajuridical nature" as numerated in the categories of Article
36 (2) of the Statute of the Court, which are recapitulated in the text of Article
XXXI. Article XXXlI of the Pact has no such li~itation and covers al1d~~- ~ ~ ~ ~

putes of whatever character.
144. The Report of the United States delegation to the Conference con-
firms this understandine of the two Articles. It states that Article XXXII ''is

Co;?ference of Americnn'~ta1es: p. 48 (1948).j
145. A second major elemeiit of the architecture of the Pact appears in

Article III:
"The order of vacific vrocedurçs establishcd in the oresent Treatv

does not signify th& the parties may not have recourse ti the proccduré
which they consider most appropriate in each case, or that they should322 BORDER AND TRANSBORDER ARMED ACTIONS

use al1 thesc procedures. or that any of them have preference over
others except as expressly provided."

Every publicist and commentator on the Pact agrees that there is no re-
quired order of resort to the methods of peaceful seltlement estahlished hy it.
The obligation is only Io usc one or the other of them if the disputc cannot be
settled by negotiations and diplomatic means. (E.g.. F. P. Olave, Derecho
Inrernacion<ilPiiblico, Lima. 1966. p. 305; F. V. Garcia-Am;tdor, The Inrer-
Americati Sysreiit,Vol. 1.Part 2, OAS, Washington, D.C., 1983,p. 233; United
States Dcpartmcnt of Statc. Report of rhe US Deleg<trionro Ilte Ninrh Inter-
national Conference of Anterican Stares, Washington, 1948. p. 44; H. M.
Blackmer. US Pi~licynnrl Ihe /nier-Alnericon Peoce Sysieni, Paris, 1952,p. 180;
R. L. Cardon, ID Solricidn Pocifica de Conrroversias /~~fen~acion<ileesn el
SisrenniA~iieric~rttoB. uenos Aires. 1954.p. 75; A. F. Marchant, 1-0Conferenrio
de Chapirlrepec y sri 111t/>orrirtiin el Sislenio /nrer<iniericrino:Conferencios <le

Chaprtlrepec. Rio (le Jrrneiro. y Bogorci. Santiago. 1968. pp. 152-153: 1. M.
Yepes. Del Congre~ode Plrnoma o la Conferencia de C~rrlzcos1 ~826.1954.Cara-
cas. 1955. p. 212: Inter-American lnstitute of International Legal Studies. The
Inter-Antericlrn Syste~it.Dobbs Ferry. N.Y., 1966. pp. 79-80,)
146. The requirement that resort to concilialion shall have failed is ex-
pressly providcd in Article XXXII, and obviously governs disputes that fall
within its provisions. But there is no requirement of prior conciliation in
Article XXXI. It folli~wsthat in disputes falling within the categories listed in
that Article and in Article 36 (2) of the Statutt! of the Court, ;iparty rnay
apply directly to the Court without first availing itsclf of the Procedure of
Conciliation and investigation established hy Chapter l'hree of the Pact. In
such cases, that proccdure has no "preference over" the Judicial Procedure
rnandated in Article XXXI.
147. From thesc Iwo elements - the breadth ol Article XXXll and the

principle of free choice among settlement methods - together with the prin-
ciple already discussed of compulsory settlement of al1 controversies (see
paras. 124-126.sitprtr) the structure of the régimeof judicial settlement con-
templated by the Pact emerges. A party has two routes ofaccess to the Court.
It may invokc the Cuurt's jurisdiction directly under the ipso Jncro clause of
Article XXXI if the disputc falls within one of the enumerated categories.
Or, whethcr or no1 the dispute is "legal". the aggrieved State rnay first resort
to conciliation. By selecting this second option, the party does no1 forfeit the
right ta ultimatc judicial determination of legal disputes. For if conciliation
fails, recourse to the Court is open under Article XXXII. And. if the Court
should decide that il is without jurisdiction becziusc the dispute is no1 of a
juridical'charactcr, Article XXXV gives the aggrieved party the right ta go Io
binding arbitration under Chapter Five of the Pact'.

148. To interprct Article XXXll in the manner proposed by Honduras de-

'TheUnitedStatesbelievrd thatArticleXXXll was toohroadin thatilmightresultin
submirsiantotheCourt iofquestionsbeyondilscompetencrtodecidr as acourtoflaw.As
a rerultilrntered a reservatioal the limeofsigningthe pact:
"The United St;rterdoesnotundertake asthecornplainantStatetosubmit Iothe
InternationalCourtofJusticeanycontraversywhichisnotcansideredIobeproperly
wiihinthejurisdiciionalthe court."(SeeReport. sitpraalpp.48-49.)
But as the Permanent Courtabserved.

"TheCourl'sjurisdictiondrprnds onthe will othe P;trties.Thc Courtisalways
competçnt once thelatterhaveacceptedilsjurisdiction.sincçthereisnodisputewhich COUNTER-MBMORIAL OF NICARAGUA 323

prives Article XXXL of any indcpendent significance. The cntire Article
would be superfluous, since Article XXXII would cover ÜIIdisputes, includ-
ing those enumerated in Articlc XXXI. It is an elenientary principlc of the
interpretation of treaties that they should be construed so as to give indepen-
dent meaning to every provision.

B. The Work of'the Inter-American Juridical Committee Both in Preoaration
for the Conlerenne and in Suli\cquent Kcrieo or the I'atl aiilHogotn Support,
the 'Teltual Intcrprrtntii>n that 1)irrct Kercirt ti, the ('ourt Ir ,\vailahle iinder
,\rticle NXXI without the Zccersit~ 01' Priiw Conciliation

14.1.'l'hch~>ts~ryan4 pr\jvcn.tn:c 01 thc tnc) ~\ri~cIcsh::ar\ OUI thc ~I..II~
mcaiiiiir:<ii the tcx1~ '1h~ I'.i~<il1l.triit.i rc.pr~,,~,:incv;>luiiiin.~riJintr-

gration>f a number of trezities for paFific scitlement of disputes theretofore
in force among some or al1 of the American States. The most important of
these were the Gcneral Convention of Inter-American Conciliation and the
General Treaty of Inter-American Arbitration, both signed in Washington
on 5 January 1929'.
150. The immediate impetus for the Pact of Bogoti was a Resolution of the
Conference on the Problems of War and Peace at Mexico City in 1943request-
ing the Inter-Amcrican Juridical Committee to draft a project for an "Inter-

American Peace Systcm". The Committee produced a number of drafts. the
most important of which, as noted ahove, were the 1945and 1947drafts.
151. At thc Bogoti Conference there were Iwo basic approaches to the
design of a system of peacçful settlement. The first. supported by the United
States and the Governing Board of the Pan American Union would have con-
tinued the basic structure of the two 1929treatics on conciliation and arbitra-
tion. ':Legal questions" would be subject to compulsory arbitration. Other
disputes would be settled by msthods chosen by the parties assisted in cases
where they could not agree by consultations with the organs of the Organiza-

tion of American States. The second approach, embodied in the Report of
the Inter-Americtin Juridical Committee, was described as a more "rigid
approach. It mandatcd the ultiniate resolution of al1controversies by adjudi-
cation or compulsory arbitration. This second approach was adopted by the
Conference. Although the final text departs substantially from that of the
earlier drafts, many of the principles in the Committee's projects are nevcr-
theless incoroorated in the Pact of Bogoti. (See. e.e.. W. Sanders. Roeorri

in The Resirltsof Rogoh, Lecriire series the Éogori ~o~zference held ar the
Pun Americrin Union, May 24, ;'. anri 26, 1948, p.37.)

Statesentitledtoappear beforethe Courtcannotreferto il.(Righ1.sofMinoriries itr
UpperSilesio (hfinorilySchoolxPCLJ, SeriesA, No.15,p.22(1928). SeealsoSor<lh
WeslAfrico cases, I.C.J. Reports 1962, 422; case concerning Milirary und Para-
miliiary Aciiviriesin nndupninsrNicuru~un,Meriis, ICJ. Repor1.s198p. 28(.ud~.
Schwrbcl.dissenting).)
In any casetheproblem thatconcertirdtheUnitedStates was anticipatedand isrrsalvcd
hy ArticleXXXVufthe Pact.
' The treaties intrgrated intthe Pact ofBoguiJ arc listedin Article LVIII, which
provides thatiheyslialcease to bein forcehriween parties thathaveratifiedthe Pact. COUNTER-MEMORIA O. NICARAGUA 325

the parties thé right to hive recourse to the procedure of conciliaiion
for the settlement of such disputes if they are in accord in preferring
that more elastic procedure." (Report ofthe Inter-American Jitridic<il
Cornririttee on the 1945 Dra# of aizAlternative Treary. p. 89'; see also
the discussion of Article XVlIl of the 1947 draft, paras. 134-136,si~pra.)

Compulsory arbitration (or in the alternative judicial settlement) was thus
the preferred procedure for disputes of a iuridical character, although of
course the posiibility of voluntaÏy resort to Conciliation was left open.
155. On the other hand, the 1945draftsmen intended that parties to olher
kinds of disputes would also be compelled to submit to some form of settle-
ment procedure:

"The principle on which the Alternative Draft procceds is that al1
disputes which the parties are unable to settle between themselves . . .
must be submitted to one or other of the two formal procedures,
arbitration being the procedure appropriate to juridical disputes. But
failine resort bv the oarties to arhitration on the eround of the non-
juridcal charaiter of'the dispute. the procedure of investigation and
conciliation becomes oblipato.y wi~hout exceptions or qualifications."
(Ibid., at p. 94.)

156. In the 1945 draft, however. this procedurc of investigation and con-
ciliation would not eventuate in a determination binding on the parties. The
next step was taken in the 1947 draft - a categorical obligation to accept
binding detcrmination in al1types of disputes: Article XVll provided:

"The High Contracting Parties bind themselves 10 submit to arbitra-
tion controversies of any nature, juridical or non-juridical, which have
arisen or may arise in the future between them. . ."

157. Articles XXXI and XXXII of the Pact of Bogota represent the culmi-
nation of this evolution. Compiilsory jurisdiction of the Court for juridical
disputes under Article XXXI, without the interposition of any other proce-
dure, is simply an adaptation of the régimeof compulsory adjudication already
in effect for such disputes under the General Treaty on Arbitration. By that
Treaty, the parties were already obligated to resort to binding arbitration of
disputes enumerated in Article 36 (2) of the Statute of the Court, unless the
aggrievcd party voluntarily chose 10 pursue the conciliation process. By 1948,
the uncertainty as to the organization of the Court that made the framersof
the 1945 draft hesitate (see para. 154, footnote 1, supra), was resolved. Ac-

cordingly the Confcrence was prepared to opt for compulsory jurisdiction
ipso frrcrrin the fnur categorics of disputes.
158. For other disputes. howcver, no previous treaty had obligzted parties
to submit to procedures that would result iiia binding decision. Articlc
XXXll was thus a major departure from pre-existing practice no1only among

The report recognired that underthcearliertreatiesthe partiesmighthave rçcoursç
toconciliationon n voluntarybasis bcforçsubmitting to arbitratioif thçy s«desire.But
such recourse was no1compulsory.The ArbitrationTreaty stated only that il"did no1
precludr the parties.bcforeresortingto arbitration,from having recourse 10the proce-
dure ofconciliationand investigalion"(Repuri, alp. 89).326 BORDER AND TRANSBORDER ARMED ACTIONS

American States but throughout the international community. It was regar-
ded by commentatoi-s as the most important achicvement of the Conference

in the field of pacific settlement. (See, e.g., A. v. W. Thomas and A. J. Thomas,
Ir., The Organizarion of Aniericnn States, Dallas, 1963, p. 290; Inter-Ameri-
can lnstitute of International Legal Studies, The Inter-American Sysrem,
Ils Development ancl Strrngthening, Dobbs Ferry, N.Y., 1966, pp. 78-79;
F. Lavinia and H. Baldomir, Insrriimentos Jiiridicos para el Manreniniiento de
la Paz en América,Montevideo, 1979,p. 29; R. L. Cardon, La Soli<cibnPnci-
fica de Controversias Internacionales en el Sistema Americrino. B~enos.Air~ ~ ~ ~ ~ ~
lYï4. p. 75: H. 31 l%I;acknic'rl..'.S1'<,/1~Wj I</111l,,~+~r-,t,,,~~r;~I~e,,c~t~.Sj>rt~nt.

P~ri>.1'152.1'.IQ.) ln Iinc aiih ihc poriiioti iirst :irluiiihr;itcin Ariiclc X\'II
01 thc 1'147Jr.iii. r\rii<lr' XSXll .i.lilcil :isi:le~.in iihich ihr. .uurrir.\cJ .;iri,
could obtain binding settlement of any dispute, legal or otherwise. if resort to
conciliation (particularly appropriate for non-juridical disputes) should fail.
159. Retrospectively in 1985, the lnter-American Juridical Committee
reiterated the distinction between Article XXXl and Article XXXll of the
Pact that it had defined prospectively in the preparatory work. At the request
of the Permanent Council of the OAS, the Committee made a study looking

toward amendments to the Pact. Opinion of the Inter-American Juridical
Committee on the American Treaty on Pacific Settlement (Pact of Bogotd),
OEAISer.G, CPldoc.1603185, 3 September 1985 (herealter "the Opinion")
(Ann. 23).
160. The study was the result of long-standing dissatisfaction among the
members of the Organization of American States with the operation of the
Pact of Bogotd. It addressed the question why the parties had not resorted
more often to the procedures mandated in the Pact and why a number of

American States had failed to ratify it. The Committee was chargcd with a
comnrehensive review of the oneration of these urocedures with a view to
rcctimnic,ndin* :iiiir.n~lnicnt> t<>'iiiipr~w~, ihc i,pL.'r:iiiainoi ilic P.,ci.:\, il
turncrl i,ui. 118;iiiir.ii,lrticiit~ur,rc .idoplc.d. hiil lhc prr.l>:$r:ii<,rtyip<ilinci
C'oiiiiiiiiic~:iii,ihc rcpori <II 11, Kiippori~~urIIIu~IIII.~ t~:~mc.inin2 -ind .)i)-
eration of the iudicial iettlement orobisions here in issue.
161. The ~Xmmittee was chairédby Dr. Galo Leoro F. of Brazil, who was
also the Rappcirteur. In the Committee's view, the "automatic" feature of the

Pact - thereauirement of ultimate submission of al1disuutcs whether leeal
or not to binding third-party determination - was the major impediment to
fuller use of the procedurcs of the Pact. The Opinion emphasizes that either
party is entitled to invoke the conciliation procedure described in the Pact,
and in such a case:

"[ilf the [Conciliation] Commission's effortsare unable to produce a so-
lution. this entitles either of the uarties. if thev have not aereed uoon an

at p. 429, infra:)' -.

But judicial settlement may also be available without regard to any ittempt at
conciliation:

"ln any event, recourse to the International Court of Justice is avail-
able to the parties inasmueh as they declare that they recognize the

jurisdiction of the Court as compulsory ipso facto, without the necessity
of any special agreement so long as the Treaty may be in effect, in al1 COUNTER-MEMORIA OF NICARAGUA 327

disputes of njuridical nature that are specified in the texi of the Pact it-
self." (Opinion. ;ii p. 429, itrfra.)

162. The Rapporteur's report on which the Committce's Opinion is based.
makes even more explicii the two alternatives or, sishe calls ihem "options"
that an aggrieved party has for reaching thc Court:

"Thc Paci has had to make allowance for a situation whereby if ;State
Party wishçs io iiivoke a givenproccdure . . il nisiydo so. If the contro-
versy in quesiion is of a juridical nature, ii does this by recourse to the
International Court of Justicel in which case jurisdiction is compulsory
ipso frrcto for the parties (Article XXXI). If the controversy is of any
other nature. ihe State may invoke the Pact by means of recourse to con-
ciliation. in which case it lias the right to request ihat the Pernianent
Council convoke the Commission of Investigation and Conciliation. . .

.. .By riitirii:ikingithirirling up<iiirhc p;irtic. I,?rcsciritu .in! yii.r.n
~xoccdure. thc P:IL. I~<I\,I~cIno .>pii<inrihcrcl>) il <,ni:<> litr~i\\ishc.\10
ubc conc~Ii:~li~~t~ h~l.l>;srl!n~tv ~il~l;~i~r.illrccluc>luf the Perii1:lncnl
Council, thc organ thit i<emiowered to Convoke the Commission of
1nvestig;iiion and Conciliation (Article XVI). thai il do so . . .

The other option the Pact provides is that ifa party decides to go to
the International Court of Justice ... to setile anv controversv of a leeal
nature, it will then have the compulsory jurisdiciion. ipso facto, of that
Court in respect of ihe other party (Article XXXI).

This direct recourse to the lnternational Court of Justice. which
comes about when a Party voluntarily brings the matter to that court of
international jurisdiction, is entirely diflerent from ihe recourse that a
party has by law as a result of the automatic clement of the Pact. In the
latter case,jurisdiction is not based on Article XXXI, but rather Article
XXXII, which provides th;it if conciliation leads Io no solution, either
party shall he entirled to have recourse to the lnternational Court of
Justice, wliich sliall have conipulsory jurisdiction in accordance with
Article 36, p;iriigraph 1,of its Statute.
.. .In the Paci of BogotA.provision h;is bcen made for the fact that

the Court has: (a) compulsory jurisdiciion for the controversies of
a juridical nature as listed in Article XXXI. which it rccognizes: and
(b) compulsory jurisdiction for any coniroversy ihat comes to it as a re-
sult of unsucccssful conciliation . . ."(Pp. 467.468. i~ifrn.)

C. The Weight of the Teachings of the Most Highly Qualilied Publicists of
the Inter-American System Supports the Position that Exhaustion of the
Conciliation Procedure 1sNot a Precoudition to Resnrt tu the Couri under
Article XXXI of the Pact

163. Although therc is sonte support in thc rvriiirigsof publicists for the
position advanced by 1-londuras,particularly in vcry brief sumniary referenccs
to the Pact of Biigotb, end some CIE the publicisls arc no1as clear as one would
like, the weight of well-considered opinion takcs the vicw that the failure of

conciliation is not a precondition to the jurisdiction of the Court 10entertain
disputes of a juridical nature under Article XXXI of the Pact.328 BOKDERANDTRANSBORDER ARMEDACTlONS

1. Pirblicisrs Nor Cirer1bi rlie Meniorinl of Hon<lrtrns

164. Professor José J. Caicedo Castilla. a Vice Chairman of the Inter-
American Juridical Committee. states unequivocally that the Pact provides two

separate modes of access to the Court. one of which. Article XXXI, has no
precondition of conciliation. In his authoritative work, El Derecho Inrernncio-
na1 en el SisrenrirIt~ferirrr~eric~oMadrid, 1970) he says:

"The Pact attributes, in general, cognizance of the controversies
among the American States to the International Court of Justice, and,
in defect of that, organizes an arbitral system such that the Court will
take cognizance of:

(1) controvcrsies of a juridical charactcr. such as those enumerated
by Art. 36 of the Statute of the Court;
(2) non juridical controversies with respect to which the parties have
no1 arrived al a solution in the conciliation procedure and have not
agreed to resolve them by means of arbitration. As ri cotiseqirence, in

rhis secoiid case rliere is n resrricrion: rhe pi~rriesor one of rhem cnnnor
recrrr direcrb 10 rhe coirrr, brir rnrher ore obligirred ro co,rr,riif rheniselves
firsr Iofhe conciliirrion procedure. Only after the failure of this proce-
dure does the court acquire competence. and bcsidcs that the parties
should prove that they did not agree to submit their differences to
arbitration."' (Ibid., al p. 374 (emphasis nddcd). See also J. J. Caicedo
Castilla. El I'<rnorr~ericoniumo, Buenos Aires, 1961, p. 259.)

Castilla talks <if"este segundo caso" as comprising "controversias no juridi-
cas". because those are the only ones as to which direct resort to the Court

under Article XXXl is. by definition,unavailable. It is clcar, however, as sug-
gested by the 1945 draftsmen and Dr. Leoro. as well as by the express provi-
sions of Article 111.that if an aggrieved State chose to do so. it could elecrto
use the conciliation procedure of Chapter Thrcefor a disputc that concerned
a juridical issue as well. The party making such an elcction would not forego
its right 10judicial settlement. for if conciliation failed to "lead to a solution"
access to the Court would be available under Article XXXII.

165. F. Lavinia and H. Baldomir. in 1n.srrirnienrosriridicos porn el Monte-
nin~enrode ln Pirz en A~rieric<r (Montevideo. 1979) adom the same analvsis.

Judicial settlenient is "the principal mechanism of ihe system of pacific seitle-
ment relying for ils effectiveness on a judicial body with universal and virtually
obligatory competcncc".

'"417. El Pactu atrihuyc en general el conocimiento de lascontrovcrsias entre los
Estadosamcricanos alaCorteInternacionaldeJusticia, yen defectodeestaorganiza
un sistemaarbitral.
De modo que InCorte conaceri:

1) de lascontroversiasde caricter juridica. ta1como lasenumera el art. 36 del
Estatuto de laCorte:
2)delascontroversias nojuridicasrespectodelascualçs laspartesno hayan llegado
a unasoluci6n cn el pracedimientodeconciliaci6n y no hayan concordado en solu-
cionarlasprjr medio del arbitrajefor co,~sigitieiiet,rsresegiin<locoso Ira" irnn
resiricciUn:o pltede,,Irisparierirndeellosnci'dirrlirecronte,<tIoCortesino que
errdnohlig<i<li.sr>mererrepreviameno rlproeeilimietrro<lecnncilinciSoloporel
fracasode este proccdimientoadquiere competenciala Corte. y ademasde eso las
partes debencornprobar que noconcordaronen someter ladiferrnciaa arhitraje." COUNTER-MEMORIAO LF NICARAGUA 329

166. Thus, the Court may entertain':

"(A) In miiltersof a j~iri<iicalcharacler
In cases wliere the oarties are unable to aeree to resolve the contro-

and in accordance with its statutes.

Article XXXI says that the contracting partics rccognizç thç jurisdic-
lion of the International Court of Justice as obligatory ipsojure. in re-
spect to every other American State while the Pact remains in force,
without the necessity of any special convention, in al1controversies of a
juridical charsicter that may rise between them [of the four categories
listed in Article 36 (2) of the Statute of the Court].

(B) In mnttersof u non-jiiridicul character
When the controversy is of a non-juridical type, the parties or one of
them cannot go directly to the Court, but are obligated first to use the
method of conciliation. Only when the resort to conciliation doçs not

lead to a result and they do not agree to resolve the matter by means of
arbitration, can eithcr of the parties resort to the International Court of
Justice." (Ibid., at pp. 29-30.)
Again, it is only in those cases where the aggrieved party "cannot go directly

to the Court" that it mus1 necessarily rcsort first to the conciliation proce-
dure. In cases involving questions of a juridical character, direct access to the
Court is open without preconditions by virtue of Article XXXI.
167. Professor Raul Luis Cardon, in La SolircidnPacificnde Controversias
Internacionalesen el Sistema Arnericuno (Buenos Aires. 1954). also distin-
guishes the two routes of access to the Court. He describes Article XXXII as
"one of the most important clauses of the Pact of Bogoti" because il is the
"maquinaria automatican that ultimately ensures a binding judicial or arbi-
tral determination of the controversy. (Ihid., at p. 75.)

"In principle, this leaves complete liberty to the parties to recur to
the procedure that they consider most appropriate to resolve their con-
troversy . . .but as regards the recurring to conciliation - by initial

' "A) Ennsrtnrorde cnrdcterjirridico

InternacionaldeJusticia y de acuerdo con susestalutos.
ElArticuloXXXl dice que laspartescontratantes reconocen. rcspectoa cualquierotro
Estadoamericano, como obligatorioipsojure,sinnecesidaddeningunaconvenciunesprcial
mientrasest6 vigenteeste Pacto,lajurirdiccionde la Corte InternacionaldeJusticia en
todaslascantroversiasdeordenjuridi<:o que surjan entre ellay que versensobre: [alist
of the fourcategoriçsinArticle 36 (2)of the Statute of the Court follows].
B) En nrimrode cnniclernu jciri<licu
Cuandolacontroversia es detipo najuridico,lasparteso una deellas no puedeacudir

conciliaci6n. olocuandoeneltranscursodebllaconciliacionnoselogra unarrcgloyotampoco
seponendeacuerdo en resolverelasuritopor laviadelarbitraje,cualquierade lasportes
podra recurrira laCorte InternacionaldeJusticia."330 BORDER AND TRANSBORDER ARMEDACTIONS

agreement of the parties or by diplomatic means having failed - the
'automatic mzichinery' can be put into movement by only one of the
parties to compçl judicial or arbitral settlement."'(Ihid.)
168. A party who invokes conciliation is subject Io the "automatic mecha-

nism" of compulsory judicial or arbitral jurisdiction if the effort should fail.
But. Cardin continues:
"Nor is this the only way in which the Pact has givçn an obligatory
character to the jurisdiction of the Court. This is also envisioned in Ar-
ticle31, according to which the High Contracting Parties have declared

that they recognize as obligatory ipsofacto, without the need for a spe-
cial aereement. while the Pact remains in force. with resoect Io anv

controversies of a juridical ode; arising between them [under the four
headings of Article 36 (2)l."(Ibid., a1 pp. 75-76.)'

Direct rccourse to the Court is open for juridical disputes under Article
XXXI.
169. Dr. Leoro, the 1985 Chairman and Rapporteur of thc Inter-Ameri-
can Juridical Committee, takes the same position in a much earlier article,
"El Pacto de Bogor$, Los Demas Instrumentos Inter-Americanos, La Carta
de las Nacioncs Unidas y la Soluci6n Pacifica de las Controversias", 4 Revirrn
Eciiaroriana de Derecho Inrernacional, No. 415.p. 36 (1968-1969). Dr. Leoro
describes the Pact's tripartite structure of hinding settlement proccdures as
similar to sources citcd in paragraph 158, siipra:

"The inno\,ations of the Pact, in virtue of which this inter-American
instrument has been a~vlauded so much. consist reallv in the acceut-
ance as obligatory, 'ipso facto', of the jurisdiction of the international
Court of Justice for the controversies of 'a juridical order' (Art.XXXI);
the recognition of recourse before the same Court when the conciliation
procedu& has failed and arbitration has not been agreed upon; (Art.
XXXII): and the obligatory suhmission to arbitration when the court
declares itself incompetent . . .(Ibid., at p. 39.)'

"En principio,estedejaentera librrtada laspartespara recurriralprocedimientoque
considerenmasapropiadopararesalver sucontroversia.. Peroen cuantose rçcurre
alaconciliacion- poracuerdoinicialdclaspartes o par haberfracasadolosmedios
diolom&ticos- I;'maouinariaautomAtica'ourde serouesta en movimiento ooruna

contratanteshandeclaradique recinocencomo obli~at&ioi~sofacro.dnnçcessidad

de ordenjuridico que surjanentre ellas.."
"Las innovacionesdel Pacto, en virtudde las cuales sha aplaudido tanta a este
instrumenta iniçramericano,consistenrealmente en laaceptaiioncomoohligatoria,

cuandolaCarte scdeclare incompetente.. .' COUNTER-MEMORIA LF NICARAGUA 331

The obligation of Articlc XXXI is presented as independent of Article
XXXII and not conditioned on the failure of the conciliation procedure.
Later the author reverts to this point. distinguishing between and discussing
separately the origins of the Pact Articles in the pre-existing procedures for

conciliation and arbitraiion.
170. Under the heading "La conciliacibn" he points out that the proce-
dure envisioned in the General Inter-American Convention on Conciliation
is taken into the Pact of Bogota. But something new has been added:
"The recognization that if this method fails without arriving at any
solution and the oarties have not aereed on an arhitral orocedure. anv
, ,
of thek will have'the right Io recur ïo the lnternational6ourt of Justice
in the form establishcd by Article 40 of ils Statute. The iurisdiction of
the Court will remain obligatorily open in conformity 'with the first
subparagraph of Article 36 of the same Statute (Art. XXXII)." (Ibid.,
at pp. 57-58 (emphasis in original).)'
As discussed above, recourse to the Court is a final step after the concilia-

tion procedure formerly availabls under the 1929 Treaty, providing a way for
either of the parties to obtain a binding result if that procedure fails. Kather
than conciliation being a necessary precondition of recourse to the Court.
adjudication becomes the capstoiie of the conciliation process.
171. Under the heading of "El arbitraje". he notes the obligation of parties
to the General Inter-American Treaty on Arbitration to submit to binding
arbitration differences of a juridical nature that are susceptible of decision
through the applic;ition of principles of law.

"The arbitration, therefore, in this treaty. is a method of solution ap-
plicable Io al1 the con1rovrrsie.s of a juridical order. the same that in the
~act of Boeoti. with eaual limitations as those contained in this treatv.
are found yubkitted, on the other hand, Io the obligatory jrrrisdidion if
the International Courr ofJirsrice (Art. XXXI)." (Ihid.. at p. 58 (empha-
sis in original).)'

172. In Article XXXI cases, as under the 1929 General Treaty. direct re-
course to binding settlement, without prior conciliation, is available.
173. Article XXXI and Article XXXll are thus alternative modes of access
to the Court. Article XXXI takes the place of the pre-existing obligatory resort
to arbitration for juridical questions (though of course, voluntary recoiirse to
conciliation was possible in such cases if the complaining party so desired).
Article XXXlI replaces the pre-existing procedure of conciliation for other
questions, bu1 addsas a final step if conciliation fails compulsory adjudication.
either by Court or arbitrator. (Ihid., at pp. 57-58.)

174. F. Fernandez-Shaw, in La Organizacibn de los Estndos Americnnos (Ma-
drid, 1963), after describing the contents and separate functions of Articles
XXXlI and Article XXXI, concludes:

'"[El1reconocimientodequesiesternetodofallarasin que se llegueaninguna solution
ylaspartesno hubiesenconvrnido a unproccdimicntoarbitral,cualesquierade ellas
tendis derechoGcurrir a laCorte Jl>fer~aîio~ade Justicien lnforma eslahlccida
en elArticulo40 de suEstatuto.La jurisdicciande laCortequedari obligatoriarnrntr
abicrta conforme al incisolodelArticuli>36delmismoEstatuto (Art. XXXII)."
'"El arbitraje[hç s:iys] pIotzintoen esteconvcnio,esmétodode soluci6naplicahlr
o io<liI<rco,zrroversiadeorden ji'ridico,lasrnismasque enelPactode Bogoti con
igualeslimitacioneque lascontenidasenesteTratado, sehallansometidas,en czirnbio,
n Injurisdiccidnohligutoriade10CorlebtrernacionaldeJusricia(Art. XXXI)."332 RORDER AND TRANSBORDER ARMED ACTIONS

"Thus. the Court can entertain controversies of a juridical type under
Article XXXI and non-juridical controversies when the parties have
tried (agorado) the method of conciliation and do not have an agree-

ment Io arbiirate." (Ibid., at p. 411.)'
,\, aiih tlic i,thcr ci~mmcni;itiir,. ihc ri,<lrrrrr~~ir~tthr:rii ihc plrtics Iirrt usc th&,
iiisihgid <IIci,n~~ili;iti(.iç <ipp<rrcdIo ihc. pussihility<ii i~ilunisry concili;!.
ti<~niii ;~ni)li~:ihlc<inlici"/(,, ~c,~trri,~,,r\iltripi, ir~rhlrri~iitit~<~\c.rc.J
by ~rticie'~~~~. .

175. FinaIl?. Dr. Alberto Herrarte, former Foreign Minister of Guatemala
and Vice Chairman of the Inter-American Juridical Committcc, said in his lec-
ture on Soliicidn Pacifica de las Coniroversius en el Sisler?triInferurnericano in
the Sixth Course in International Law Organized for the Inter-American Juri-
dical Committee in 1979:

"The most important provisions of the Paci are in Article XXXI.
which declares as obligatory ipso facro the jurisdiciion of the Court in
controvcrsics of a iuridical order to which suhoaraeraoh 2 of Article 36
of the Statute of the Court refers. This is: thé ~ier(can States by the
Pact are making the declaration to which that subparagraph refers. in
order to make 6hligatory ipso facro and without necesiity-of a special
agreement, the jurisdiciion of the Court in controvcrsies of a juridical
order thai specifically are mentioned.
In conformity with Article XXXII, thc jurisdiction of the Court also

rcmains obligatory for the other matters in which the conciliation procc-
dure did not arrive at a solution and the parties had not agreed on an
arbitral proccdurc. In that case, any of them can rccur to the Court, rely-
ine uoon the casc indicated in the first suhoaraeraoh of our Article 36 of
th: aiready mcntioned Statute. this is when the:a;iics submit voluntarily
matters to the Court." (Secretario General. Organizacion de los Estados
Americanos. Se.rro CII~SO de Derecho lnrerrtrr~ort~rlOrgorrizndo por el
CorriireJirrirlico Irrrerantericano. 0EAlSer.QlV.C-6. CJI 40. at 225.)2

176. Accordine to Herrarte. the Parties. in Article XXXI. have inter semade
the declaratioii rzerred to in Article 36 (2) as to the classes of questions men-
tioned in that paragraph. Article XXXII, on the other hand. covers "los otros

'The originalSpanishtext:

"Asi.pués.laCortçconocrri delascontroversiasdciipiijuridicosegunelarticula
XXXIyde I;isci>nlraversiasde tipnojuridico,cuandoInspartcs hnyanagotadoel
m6tododc laconciliacihnyno se hayanpuestode acuerdosohrc siesprocedenteel
métododelarhiir;ije."
>"Las provisionrsmas importantes delPactoestan en elArticuloXXXI.cuandodeclara
comoobligatorio iprofacro lajurisdiccionde laCorte en lascontroversiasde orden
juridicoaque serefirre elinciso20del articulo36deI Estatutode laCorte. Estoes:
losEstadosAmcricanospor el Pactoeslin haciendoladeclaraci611 aque serefierr
dichoincisi)para hacerobligatoriaiprufocroysinnecesidaddeconvenioespecial.la
jurisdicciondelaCorte en lascontrorerrias deorden juridicoque especificamentese
mencionan.
ConlorniçalarticuloXXXII.lajurisdicciondelaCortelanibienquedaobligatoria
paralosotrosasunios en lascualeselprocedimientodeconciliacihn no llegaraiuna
solucihny lasPnrtcsno hubiesenconvcnida a un procedimienta.arbitral.En esecaso,
cualquieradeell;ispucdc recurrir ala Corte. homologAndoseel cas" sefialadaen el
inciso 10del articula 36delya citado Estatuta. éstoes cuando las Partes someien
voluntnriamente los asunlos alaCorte." COUNTER-MEMORIA OLFNICARAGUA 333

asuntos" and it is only with respect to them that the requirement of prior
conciliation is imposed.

2. PiiblicistsCired in rhe Memorial of Hon<lnras

177. Respondent, at pages 65-71, supra, of its Memorial, presents the opi-
nions of a numbcr of publicists in support of its positicin that an effort zitcon-
ciliation is a necessak orereauisite'io recours6 to thc Court under Articlc
XXXI as well as under Ârticle XXXII, where the requirement expressly ap-
pears. Although somc of these do support this view, others are misconstrued in

ihe Mernorial& treat the matter onlvin brief and summarv fashion without ex-
tensive consideration or analysis of the text of the ~rticles:~oreover, only one
is a Latin Americaii iurist working in the tradition of inter-American law.

rial, p. 67sripr<i.

178. A careful reading of Mr. Sanders shows that his position is not ne-
cessarily inconsistent with Nicar;igua's. His morc detailed description of the
judicial settlcntent Articles seems to make precisely the distinction Nicaragua
now maintains:

"In thc chapter on judicial procedure, the partics recognize the juris-
diction of the International Court of Justice as compulsory ipso facto in
ull disprrtesof a jiiridical rratilrin conformity with Articlc 36. para-
graph 2, of the Statute of the Court.
Moreover, when conciliation procedures have not led to a solution
and the ~arties have not been able to aerce uoon an arbitral ~roccdure,

of the Statute . . .
The net result of thesç interlockine ~rocedures is the followine: The
". u
parlies are not required Io resort in the first instanceto rrnyparticulnr
procedure of thosesetor11in the Treaty . . They may have recourse Io
the International Court of .Justice or set uo an arbitral tribunal.evenin
non-legal qrrestion.~ ,ather than refer the matter to medialion or con-
ciliation. However, if conciliation is tried and fails and the parties can-
not agree ou arbitration, any one of them can force a reference to the
Court." (Op. cir.pp. 403-404 (emphasis supplied).)

The discussion of conciliation is in connecrioriwirll thesertlementof "non-legul
questions"folling lrnder Arricle XXXII. Resort to conciliation is a way by
which a party can "forcc a reference ta the Court" for the resolution of such
non-legal questions'. For legal qilestions, which hll under the ipsofacto pro-
visions of Article XXXI, howevcr. the partics have acccpted the compulsory
jurisdiction of the Court in conformity with Article 36 (2) of its Statutc. Mr.
Sanders's fuller trcatment is thus consistcnt with the position that concilia-
tion is not a precondition of jurisdiction under Article XXXI.

L. Delbez, "L'évolution des idéescn matière de règlement pacifique des
conflits". 55 Revuegériérule de droit Nlrernatiunalpirblic 5 (1951), cited in
thc Memorial, p. 67, supra.

'70be sure. the Courtmightnat consider ithadjurisdictioninsuch a casebut inthat
evcntcompulsoryarhitratian issvailshleundrr ArticleXXXV.334 BORDER AND TRANSBORDER ARMED ACTIONS

179. Professor Delbez's comments occupy lessthan a page in a long article
devoted to other agreements and forums. His basic assumption is that. des-
oite Article III.the seitlement orocess should "normallv" follow a orescribed
;cqucncc iif m<iJ:ilities. fruni 'g;,o~ uiiicc\ .incliiicili:i~ii,ihrousli ~'~iii~~~,ti~;t-

lion :lnJ :<inciliaiion" ii,"pr~icecdiiigs hcfurc thc I.CJ " (op crt. p. ?I) 'Th#\
~\>uiiipii<~n.;as Ilic Ii<in<lur;in \lcriiori;i~isclf noter (hlcm<>ri;il. p 07. icioi-
nulc 1..si,l~r<~). incorrect. ,\rticlc IIIc~prc\\l!. ~tipul:iic~ ih,it thcrc i?no prc.
fcrsii1i:il orJer :im<iii(: ihc Ji,puie siiilenient nictliod\ prcscrihc<l :ind ihcii ihc
parties are entirely I'ree to choosc any one of them, unless expressly provided

otherwise. This freedom of choice is an essential feature of the Pnct. (Sce
authorities cited in paragraph 145, arprri.)
180. Professor Delhez's conclusion cannot be divorced from his erroneous
assumption. Of coursc. if thc Pact did indeed provide for a hierarchically
ranked sequence of methods, those higher in the sequence could no1 he cm-

ployed before lesser ones werc exhausted. It would follow, as Professor
Delbez concludes. that conciliation is a precondition to adjudicatioii. Rut if
the treaty expressly rejects such a hierarchy, then there can be no require-
ment that one method should be pursued before another. unless the instru-

ment speci[ically so provides. II is an indication of the deficiencv in Professor
l>elhc;'< line o<.in;d),sis th.11he dor., no1ewn cite ,\riiclc SXXI The ci~nclu-
sion 1r uiiforiun;iicl!~ incscap.ihlc ih;it I1rofcss<orDclhc., diil ii,ifull" gr;i\p ihc
scheme of the Pact

A. v. W. Thomas and A. J. Thomas, Jr., The Orgrrnizririon of Anlericon
States, Dallas, 1963,ciied in the Memorial, p. 66. sirpro.

181. The quotation in the Memorial from the cited work is correct. How-
ever, the bulk of the authors' cnsuing discussion and analysis is an cffort to
discredit what they cal1

"the dubious distinction betwecn legal, justiciable, or juridical disputes
on the one hand and non justiciable, non jundical, non legül. or political
disputes on the othcr" (OIJ.cif., p. 291).

I.ikc 11ilr noi. ihc diiferencc hctueiii Ihc procedure\ coiitcmpl;iicil in Article

SXXI and Ariicl,. XXXll of ihc t';ici of U(lgi11;ir~,flcci, 1h;ii ilislinciii~n. If
the authors are unwilline to recoenizcuthe dktinction ab i~iilio. ihev surclv
uill hc iinahlc iii:ipprecinie the potcnii:il iIi(fcrcncc.s heiivecn the i\\,i) calego-
ricr ihai uciulil le;d iu the rcquircincnt of prciivui r<~ncili;iii~~nfor ~inc and

not for the oiher

R.-J. Dupuy, Le norrvenii prinm,lc'rico~rismr. Paris, 1956, citcd in ihc Me-
morial, p. 68. sirprii; G. Conncll-Smith. The Inter-Americnrr Syster~r,Lon-
don, 1966,cited in the Mcmorial, p. 69. supra; H. von Mangholdt, Arbitr~r-
tiun and Corrciliation in Jiidiciol Setlletrrentof Internnti»nal ~isl>itlcs, A Sym-
posil<rn, Max Planck lnslitutc of Comparative Public lntcrnational Law,

cited in the Memurial, p. 70. sirpro.

182. Lich iiiIhc\r. xorks h:i, n \in& ioncluiury \r.niciice. quoicJ in 11ic
\lcm~~ri:~I,ascrling \viihc~ut;iii;bIy,is or cilat~on c~f:~utIioriiy 1h;11i~~ncil~;~ii~~n
is ;iprccond~ii~,n oi rcwri IO ihc Cour1 unJcr ihc I'.~ct. In ihi circuni~i;incc~.
they must be regarded as derivative rather than the well-considercd inde-
pendent views of individual publicists.

183. Of al1 the authors citcd iri the Memorial. iherefore, only Garcia-
Amador presents an extended analysis in support of the Honduran position. COUNTER-MEMORIAL. OF NICARAGUA 335

184. Nicaragua makes the following submissions with respect to the juris-
diction of the Court under the P;ict of Bogoti:
(i) The acceptance of the jurisdiction of the Court under Article XXXI,

"ipso fucro and without the necessity of any special agreement" is a treaty
obligation binding on the parties lalling within the terms of Article 36 (1) of
the Statute of the Court as a "matter[] specially provided for.. .in treaties or
conventions in force".
(ii) The acceptance of jurisdiction under Article XXXI of the Pact of
Bogoti is not and cannot be qualified by the purported "reservation" or "new
declaration" of Honduras dated 22 May 1986.
(iii) The jurisdiction of the Court over this case, which the parties ac-
cepted "ipso facto, without the necessity of any special agreement" under
Article XXXI, is no1subject to a prior condition that the conciliation process
established by the Pact shall have failed to provide a solution. CHAPTER 4

ARTICLESII AND IV OF THE PACT OF BOGOTA DO NOT CONSTI-
TUTE A BAR TO THE COURT'S IURISDICTION IN THE PRESENT
DISPUTE

185. Honduras argues that the mutual submission 10 the Court's jurisdic-
tion based on the Pact of Bi~goti is negated, in the circumstances of the
present case, by Articles II and IV of the Pact.
Article II states that:

"in the event that a controversy arises bctween two or more signatory
States which, in the opinion of the parties, cannot be settled by direct
negotiations through the usual diplomatic channels, the parties bind
themselves in use the procedures established in the present Treaty. in
the maniier and under the conditions provided for in the following ar-
ticles. or. alternatively, such special procedures as, in iheir opinion, will
permit them 10arrive ai a solution."

And Article IV provides:
"[Olnce any pacific procedure has been initiated, whether by agree-
ment beiwecn the parties or in fulfillment of the present Treaty or a
previous pact. no other procedure may be commenced until that proce-
dure is concluded."

186. Honduras piirports to find in ihis language two separaie bases for ne-
eaiins the exercise of iurisdiction by the Court in tbis case. First, Honduras
àreu& that the obliea-ion underiaken bv the contraciing uar-.es to use the
prkwJurr.s csi;ihli%hcdin ihc l';ici. iiicluding rccoursc Io ihc (:<iuri. is sulijcct
iciihc condition prcccdcni ihtii 'ln ihc i)pinion<ifihc partic\" - whlih 11i1ii-
duras reads as "h the o~inion of borliÜarties" - the dis~ute cannot be set-
ilcd by Jir~.cl neg<iti:iii;n through ihc'u~u.il diploiii;tiic chanilcl\. Hondurii5
conicnds ih;ii mcrclv hy cxprc.;\ing thc opini<inihai II>di\piiic with Vi~cira-
-u3 rütihc seitled bs direct nc~uiinti~in\ilciiii prc\'cni tlic luridiciii>nihc1
Court [rom attaching. lndeedrit can prevent iecourse 10 iny of the proce-
dures for peaceful settlement defined in the Pact.
187. Sccond, Honduras argues thai the Contadora process. in which boih
Nicaragua and Honduras bave heen participating constitules a "special pro-
cedure" under Article II thal "in their opinion" - which Honduras reads as
"in the opinion of orreof them" - "will permit thcm 10 arrive al a solution".
Honduras contends that by viriue of Article IV, as long as the Contadora
process continues neither these parties (nor it would seem, any other Central
American States pariicipating in Contadora) can invoke any of the pacific
procedures of the Pact. including the procedure of judicial settlement, Io deal
with bilaieral issues I~etweenthem thai mighl be said 10 be wiihin the purview
of Contadora.
188. Nçithcr of these positions can be seriously maintained. As will be
shown. io accent either would be Io frusirate the central D.rDo.eof the Pact
-"th; ultimak purpose of rendering compulsory, and as it wcrc irreversible,
the recourse ton binding modes of resolving al1disputes between parties.338 BORDER AND TRANSBORDER ARMED ACTIONS

when il is the opinion of the parties that the dispute cannot be settled by
direct negotiations'. It is perfectly logical (and much more consistent with the

purpose of the Pact) to read Article II as setting forth one circumstance -
but not the cxclusi\.c one - in which the pariies bind themselvcs to use the
procedures set Forth in the Pact, namely when thcy are of the opinion that
their dispute cannot be settled by direct negotiations. Under this reasoning,
Article IV sets forth othcr circumstanccs in which the parties are bound to
use one of the specific procedures set forth in thc Pact. Because Article
XXXl is unconditional, il applies regardless of the opinion of the parties as to
whether the ~i~ ~te can be settled hv neeotiations.
194. The truc construction of the words "in the opinion of the parties, can-

not be settled bv direct neeotiations throueh the usual didomatic channels ..."
(and the only intcrpretatiGn consistent wiïh the central purpose of the Pact) is
that the parties lo a dispute are bound to use the proccdurcs in the Pact when-
ever one of them bclieves that it cannot be settled by diplomacy. This reading
is confirmed by the pcaceful settlement provisions of the Charter of the Or-
ganization of Amcrican States, concluded at the same Bogoti Conference.
which were the foundation of the Pact of Engota. As has already been pointed
out (suorri.nara. 126). Article 23 of the Charter (now Article 25) imnosed a

binding obii'gationonihc members of the organihtion to agree tb a ieaceful
procedure for the settlement of any dispute "which, in the opinion of one of
ihem, cannot be settled through théusuil diplomatic channels . ..".Article 24
(now Article 26) mandatcd "[a] special treaty" to cstablish procedures and
means for their application "so that no dispute betwïcn Amïrican States shall
fail of definitivc scttlement wiihin a reasonahleperioll" (cmphasis added).
These Articles are addressed to the same orohlem as Article II of the Pact. and
it 5hiiuldhc rc;id inpitri ~~i(iit,uilh r\rticle 23 ut the >upcriirJin;il~.Charter.

In p:irticular. ihc rclcrencc in th'. ('hartcr to ihc ncccssit) of scttlciiicnt uithiii
a ieasonable period precludes the proposed ond dur a cnonstruction, which
would give any party to a dispute the means of prevcnting settlement indefi-
nitely.
195. The Court itself has frequently construed clauses in compromissory
agreements requiring prior resort to diplomatic ncgotiations. It has held that
the intention of the parties in accepting such clauses is clearly to provide for
such a right of unilateral rccourse to the Court, in the absence of agreement
to employ some othcr pacific means of settlement. There is no reason to

believe that the parties to the Pact of Bogotd intcndcd anything different
when thcy agreed to such a clause in Article II. espccially in vicw of the ex-
oress laneuaec of Articles 23 and 24 of the Cha~t~r of thc OAS. which w.re
roncluded sikultancously. Judge Ago expressed the samc idea in his separate
opinion to the Judgment of the Court of 26 Novemher 1984:

"More gcnerally speaking, 1am in fact convinced that prior resort to
diplornatic neeotiations cannot constitute an absolute reuuircment. to
be'satisficd ecen when the hopelessness of cxpccting any'negotiations
10 succced is çlear from the state of relations between the parties. and
that thcre is nt) warrant for using it as a ground for delaying ihe opening
of arbitral or judicial proceedings when provision for recourse ta them
exists." (Mi/ii<iry and Parnmilirary Acriviiies in irnd againsrNicaragira,

'ArticleIIdors,rorsay. forexample,thatunlesstheparties arcalthe opinionthatiheir
disputccannothescttled hy directnegotiationsthroughtheusualdiplomaticchannels.the
pariiesshallno1 usc thçprocrduresestablished inthe presçntTrcaty ... COUNTER-MEMORIAL OP NICARAGUA 339

Jlirisdicrion of the Coiirt and Admissihility of the Applicarion, I.C.J.
Reports 1984, pp. 515-516.)

196. Authoritative commentators have also rejected an interpretation of
such a clause that would yive a Statc r>artYan absolute veto, enabline it to be
used unilaterallv to blockresori Io the'Court bv contendinz that furthèr neeo-

197.'~hus, Ghen thire is dis&ernent béiween the parties, the issue is to
be resolved no1 so much on the basis of the particular form of words used in
the com~romissorv instrument. but bv an obiective evaluation of the oossi-
bilities fUrsettlemént of the dispute "by direci negotiations through the'usual
diplomatic channels". This is the position of Ambassador Rosenne:

"Neither Court, it seems, has attached much significance to these dif-
ferent formulations lin the title of iurisdiction. referrine to disuutes
nhich ~<oitloihe ~,rtir:, ,~iilc,dh! ~i~~iiii;iiii.iiiJ l>oih%,,\r.ilir~cic~
lhcir :iiiciili$>nin icarcs iiiciiiii,n<Jic.tricx:iniiii:iiionoi II;~I.C\II<)II
whcther llicxi,ir.nLc id:id~:id.i,cnin Ihc rir.coti:ilion\ i. c\i:~hli~h:il.:and
whether any reasonable probability exists thaï further negotiations would
lead to a settlement." (The Laiv and Practiceof the InternarionalCui<rt.

Sijthoff, Leyden, 1965,2nd cd., 1985,Vol. 11.p. 515.)
198. Rosenne's analysis reflects very accurately the consistent jurispru-
dence of the Court. Thus, for example. in the Righr of Passage over lndian
Territory case, the Court rejected the third preliminary plea in bar by lndia
that prior negotiations had no1 been exhausted, commenting that

"While the diplomatic exchanges which look place betwecn the Iwo
Governments disclose the existence of a dispute between them, on the
principal legal issue which 1snow before the Court, namely. the ques-
tion of the right of passage, an cxamination of the correspondence

shows that the negotiations had reached a deadlock." (I.C.J. Reports
1957, p. 149.)

199. Similarly, interpreting Article ><XI,paragraph 2, of the Treaty of
Amity, Economic Relations and Consular Rights of 1955between the United
States and Iran, the Court held tliat
"the immediate and total refusal of the Iranian authorities to enter into
any negotiatir~nswith the United States excluded in limine any question

of an agreement to have recourse to 'some other pacific means' for the
settlement of the dispute".
The United States was therefore entitled to bring a case before the Court on

the basis of this provision. (United States Diplontatic and Consiilar Staff in
Tehran, I.C.J. Reports 1980,p. 25.) The same reasoning led the Court to the
same conclusions with regard to Article XXlV of the Treaty OS Friendship,
Commerce and Navigation of 1956 between the United States and Nicaragua
(Militnry and PurrrmilitnryActivitirs in rind against Nicaragua, ICJ Reports
1984. p. 428; ICJ. Reports 1986. p. 137; see also the separate opinions of
President Nagendra Singh and .ludge Sir Robert Jennings. I.C.J. Reports
1984, pp. 445-446, 555-556.)
200. The P.C.I.J. rcached the same result in interpreting Article 26 of
the Mandate for Palestine of 1920. It dismissed the preliminary pleas in bar340 BORDER AND TRANSBORDER ARMED ACTIONS

entered by the United Kingdom that there was nothing to show that the dis-
pute could not be settled by negotiation:

should have been commenced, and this discussion may have been very
short: this will be the case if a deadlock is reachcd. or if finallv a ooint
is reached al which one of the Parties definitely declares himsif unable
or refuses to ive way, and there can be therefore no doubt that the dis-

pute cannot be settled by diplomatic negotiation." (Case of the Mavrom-
r~mtisPalesrine Cuncessions, P.C.LJ., Series A, No. 2, p. 13.)

Bogoti contains a requirement that the dispute cannot be resolved by direct
iiegotiations, that rcquirement presents no obstacle to the exercise of juris-
diction by the Court in this case.
201. The fiicts of thc uresent case fullv satisfv the cited ~ronouncements of
th r i Si,.ira~u;i h:~. hwn pr6,ic,tini: .I~ploiitnii<.~ll! Hi,nilur.îs ~iii-

iinui>u,l\ siit:~ 1')Yiiairh rc.;pc;t 1,1,11111I~C IIiii~Jur:~n:<c~I<I~ciIch~r~l>c< lJ
h \:II (hi. .tccc~it.ii~~iiihi,usaiiJ\ 01 mr.rLcn:iric, c,i;ihli,hind and
maintainine militarv bases and other facilities in Honduran territorv fo-r the
I)II~I)I"C.bi c.irr!ing uui nrii1c.J.trt.ick> in;iriJ;ic:iin\t Sic,ir:igu.i. thc pr.w
slon oi VII:IIini~ll~~ciicc.inJ lc~~i~i~c;;iu lpp,lrr IO 1:$:11113ttcltc ~n~~rccn;i~ic~'
.~tl:ack\on Stcar:i<i~.x:thc ,act~\~ ~~~tri~<~~.~iic~tt llo~iJur.in ;arnicJ for.'cs in

purpose of intimidating Nicaragua and intervening in its interna1 affairs.
Numerous diplomatic protests have heen rçgistered. Notwithstanding these
protests. Honduras's unlawful activities have not only continued, but steadily
intensified.
202. Since 1981.Nicaraeua unsuccçssfullv has soueht a settlement throueh
Jirc<t nc~g,otl:~tlc~unlih tlc~n~lur;~\ .i\.lc,cr~hc,~ IIIIII:I~I~CIJIICII ~p:r.i\ '1-
J7. %rq~r,t]1hc hraJ\ oi Si;<tcot the tri<,:c,iinirie\ nicttir13\la\. I.IhI to Ji\-
cuss ihese matten, but the transgressions complained of by ~icaragua grew
only worse thereaftcr. Several meetings took place subsequently, involving

high-ranking military and civilian officiais from both States, but still there
was no progress toward a settlement. (Paras. 34-35, supra.) A watershed was
reached in April 1982whçn. in response to the Nicaraguan Foreign Minister's
7-point plan for resolving the dispute, the Honduran Foreign Minister wrote
back rejecting any and al1 bilateral efforts to reach a settlement (para. 34,
sii~ro). Since thcn. Honduras has steadilv maintaincd its oosition of rcfusine
to'engage in direct iiegotiations with ~icaragua. either thhugh the usual di;
lomatic channels or otherwise'. On this record, it is evident that thrre is no

Hondurasdoesnotcontend. "orcouldit,that the participatioof thetwo States,arnong
others.inthemultilateralContadoraprocess,constitutes"directnegotiationsthrough the
usualdiplornaticchannels".TheContadora negotiations are neither "direct"(as between
Nicaraguaand Honduras) "orare thry "the usualdiplornaticchannels".The relation of
theContadoraprocessta thejurisdictionnlissuesisdiscussedmorelully inparagraphs204-
234,infra. COUNTER-MEhtORIAL OF NICARAGUA 341

likelihood of direct ncgotiations between the Parties even occurring. let alone
leading to a settlcnicnt.
203. Under the established jurisprudence of this Court and ils predcces-
sor, this is more than sufficient to satisfy any requirement of prior recourse to
diplomacy that might exist.

B. The Contadora Pri,cess 1s Not a "Specinl Procedure" under Article II
of the Pact of Bugoti and, in Any Event, It Does Not Address the Bilateral
Legal Dispute between Nicaragua and Honduras

204. Honduras also contends that the continued functioning of the Conta-
dora Drocessdefcats the Court's iurisdiction in this casc. because it is a "s~e-
cial okocedure" within the meaniAe of Article II of the Pact. Once such a ~ro-
cedire has been initiated. accord& to Article IV. whether by agreement
between the parties or in fulfilment of the prcsent Treaty . . no other proce-
dure may be comnienced until th;it procedure is concluded". Thus, says Hon-
duras, Nicaragua is precluded from resorting to the Court under Article
XXXl until the Contadora process "has becn concluded".

205. The concept of "special procedures" has not bcïn judicially defined
nor much elucidatcd hy the commcntators. Mexico. which introduced the
idea in thc dcbates al Bogoti, h;rd in mind cases in which some specialized
expertise might bc useful in solving a particular controversy.
"A controversy whose character is fundamentally economic might be
resolved by an expert apprüisal. In the case of a technical controversy

about engineering, itcould be arranged that a technical engineer organi-
zalion carry out an investigation and resolve if." (Ministerio de Rela-
ciones Exteriores. Novena Conferencia /r~rer~~i~cio,rA il ericana, Aclas y
Docrii~ie~trosB, ogoti. 1953,Vol. IV. p. 126.)'
The Contadora proccss certainly does not fit that description. However. apart
from this, therç is nothing in the books.

206. Thc question mus1 thus be approached as oiic of principle. In this
lieht. it is anoroori;ite to make somc oreliminarv observations.

waivers aie not to be lightly inferred,'the party asserting the bar should be
able 10 point to some express indication that the process in question was re-
garded as a spccial procedure within the meaning of Article II or that a
waiver was intendcd.
208. Secotrd, Article IV refers to a procedure initiated "by agreement
between the parties or in fulfilment of the present Treaty . . ."This seems 10
imoort an aereemcnt confined to the oartics Io the ~arlicular disDute.with oar-
ticilar refeGnce to that dispute. ~oreover, when i priicedure ;cher than 8ne
specified in the Pact is in issue, there should be somc acknowledgment, express

'Original tçxtinSp;inish.
"Una controversiafundamencalmenteecon6mic;ipuçdercsolversç conuna valo-
riraciode cxpertos.En "na controversiadetecnicadeingçnirrizi.e puedellcgara
estableccque un organisme técnicode ingenieriahvgauna labordc investigation y342 BORDER AND TRANSBORDER ARMED ACTIONS

or implied, that the process is undertaken for the purpose of discharging the
treaty obligations of the parties.
209. Third.the ~rocedures s~ecified in the Pact al1have definite time-limits.
Under Article XII~,if "no soluiion tu the controversy has been reached within

five months after mcdiation has begun, the parties shallhaverecourse without
delay tu any one of the other procedures" established by the Pact (emphasis
added). Article XXV orovides that a Conciliation Commission "shall co~~lude ~ ~ ~ ~ ~ ~ ~ ~ ~
its woik within a per;od of six months from the date of ils installation . . .".
These tight lime-limits reflect the demand of the OAS Charter for a svstem of

oeacefuisettlement to ensure "that no disoute between American %;tes shall
fail of definitive settlement within a reasonable time" (Art. 23 (now Art. 25)).
It follows that an open-ended process, without a fixed terminus, should not be
considered a special proceduri within the meaning of the Pact, unless an in-
tention tu the contrary is very clearly expressed.

210. When considered in the light of these general principles, the Conta-
dora orocess. thoueh undoubtedlv of the utmost imoortance for the eeneral
explo;ation and re~olution of the overall regional priblem does not qualify as
a "special procedure" within the meaning of Article II and subject tu the
waiver requirements of Article IV

211. It is reasonahle tu suppose that if the participants in the Contadora

urocess had underslood il tu be a "s~ecial Drocedure" under Article II of the
~act of Bogoti - such that until iis condusion no othcr pacific procedure
could be used - this understanding would have been manifested somewhere
in the numçrous Contadora documents and drafts that have been oreuared
and circulated. in the declarations of the five Central American statesi nar-
~ ~ r~
ticipating in the process, in the declarations of the four States that comprise
the Contadora gr ou^^ or in the declarations of the four States that cornorise
the Suooort ~irouo'.~ll 13 States connected with the Contadora orocesi are
memb&s of the Pact of Bogoti, and would plainly have an interest'in whether
their participation in the process might affect their right tu any other pacific

'rocedure under the ~acïdurine thëoende..v . of the8rocess.
JI?. Ilir ~ignific:ini.ihdn. iht~i nul ;iiin~l~(:ontii~~ir~documr,ni <ir Jr.iit.
ncli .i\inslc ~l~~l;ir.ilii>nI>!.:III)iii~iiilicr<ilthe <:<int:idi>r;C i iriBiip,:jnJ tii,i:I
single declaration hy any member of the Support Croup suggesti in any way
that the Contadora orocess is a "soecial orocedure" under Article 11of thc

p~enipotentiar~ tuthe Contadora p;ocess said that contadora was a proce-
dure totally outside the Pact of Bogota:

'Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua.
2Colambia, Mexico. Panama and Venezuela.
'Argentina,Braril, Peruand Uruguay. COUNTER-MEMORIA OLF NICARAGUA 343

'On ihc i111icrh:lnd. thr.ci,ntiiicnt~l s!stc'niiiiih~ Cirg.irii/.iti<,if
,\mr.rii.in Si.tes. uliich ir cniliiivcJ\vith .in iiitruriicnt ior ihc p.lcific
sr.ttl~nicnicildisnutc,, >11ch.,\thc.I'iiit01 UO~III. o~rwith .,n in\truiiIcrtt
of collective sec;rity such as the Treaty of R;, is too lethargic Io play a
role in the case of Central America." ("La crise centraméricaine et les

négociations de Contadora", AFDI, 1985,pp. 272-273.)'

2. The Contadora Process Cannot Have the Effect of WaivingRecourse ro Other
Procedures, risRequired by Article IV of the Puct, hecrtitseII Has Never Been
Envisnged as an Exclusive Means to Sertle Dispirres among Central Ameri-
cirn Coitnrries

213. The Contadora process is not an organization or activity of the Organi-
zation of American States. It is no1 a Pan American effort, but a strictly Latin

American one. The notion that Contadora is the exclusive venue for the solu-
tion of disputes between Central American countries has never been accepted,
eithcr by the Contadora Croup itself, other international organs such as the
United Nations, the OAS or this Court or by any Central American State.
Honduras itself did not take that position before the present proceeding.
214. Hondriras - On 29 March 1983, Honduras urged the Permanent
Council of the OAS to invite the States of Central America to begin direct
negotiations on a five-country basis. On 5 April it tabled a draft resolution to
that end. (Mernorial. Annex 10.) Aeain in Julv of that vear it reauested a
iiicr~iin>: i the C'uuncil t<ich.iniiiir thrc.itsIcipc;i:c :inils~.~urity 111<illlr31

am cric.^. (lbr~i...\I~IILX12 ) 1x1111~ cxprc,, rcquc',t i>itl~c (dnt~&>r:iGroup.
tlic dr;iit rc~~~liiiii~iiIr nailJcl?.iir.J ('lc:iil\, Iicnvc\:r. H<>nd~r.i>did in<,t
consider thc Contadora process as precluding other avenues of settlement
among the parties.
215. ln October 1984, Honduras fostered the creation of the Tegucigalpa
Group of three Central American States to oppose a Contadora initiative.
(See Introduction, paras. 41-43, sripra.)
216. In a recent article on the Contadora negotiations Professor Jorge
Ramon Hernandez Alcerro, the Honduran representative, said:

"National or internai ncgotiations are naturally insufficient to re-
establish a normal situation in Central America. Bilateral negotiations
do not suffice either, since we should then have to exclude conflicts of a
national or multilateral natu~e."~("La crise centraméricaine et les négo-
ciations de Contadora", AFBI, 1985.p. 272.)

217. All these pronouncements establish that Honduras does not view the
Contadora process as precluding its resort Io other forums and methods for
resolving Central American issues and prohlems.
218. The OAS, the United Nations and rhe Coiirr - It is apparent from the
many instances where the organs of the United Nations and the OAS consi-

--
'The ori-inaltex1in Frçnch:
"D'un autre cîité.le systèmecimtinentalde l'organisationdesEtats américains.
datéd'uninstrumentintrrnationiilderèglementpacifiquedesdifférends."
'The originaltrxtis iFrench:
"Les négociationsnationales ou internessont naturellement insuffisantespour
rétablirlanormalitéen Amérique centrale.Les négociationsbilatéralesnesuffisent
vas nonplus,car ilourlaisserionen dehorslesconflitsd'ordrenational ou lesconflits
decarailèremultilatéral."344 BORDER AND TRANSBORDER ARMED ACTIONS

dered issues arising out of the situation in Central America that the operation
of the Contadora Grouo is not conceived as foreclosine resort to these other
political forums. ~owcber, the actions of these organi;ations go further and
indicate expressly that Contadora is not regarded as displacing bilateral or
other direct settlement efforts between the iarties.
219. For example, in his report to the ~eneral Assembly of Y October
1985, thc Secretary-Ceneral of the United Nations emphasizes the necd to
seek bilateral soluiions to border incidents:

"Concurrently with the Contadora Croup's search for a compre-
hensive solution, any border incidents that arise should be dealt with di-
rectly by the parties." (Memorial, Ann. 21, p. 143, supra, sec. 11.)

220. Similarly, in Resolution 702 (XIVl84), 17 November 1984, the OAS
General Assembly rcsolved:

"5. To urge al1the Central American governments to manifest their
will for peace and to intensifytheir consultationsamong ther~oelves and
with the Contadora group." (Ibid)
221. The Iiiternational Court of Justice itself, in the Military and Paramili-

rary Acrivitiescase, said it was
"unable to accept either that there is any requircment of prior exhaus-
tion of regional negotiating processes as a precondition to seising the
Court; or that the existence of the Contadora process constitutes in this
case an obstacle to examination by the Court of the Nicaraguan Appli-

cation and jurlicial determination in due course of the submissions of
the Parties in the case" (I.C.J. Reports 1984, pp. 440-441).
222. The Contadora Groirp - One would suppose that the Contadora
Croup itself would be the most jealons of its own exclusive jurisdiction, if it
had such. On the contrary, the Croup has encouraged the employment of a

wide variety of settlement processes, except in rare circumstances, as in the
case of the attempted formation of the Tegucigalpa Croup by Honduras,
where it appeared that such alternative avenues werc not being pursued in
good faith but were an effort to obstruct Contadora's own activities. Indeed,
the Declaration of Cancun asserts that it is the States of Central America
"UIII:IInlust \Ii<,ulJcrIIICpr~~n:~rrycqxtnsih~I~l\.incln~ak: thc nujol tilc,rt III
tlic \e.ir:h for :i~rcrnicniInrurini:pc.t;ciul ~os\i~ic~iir."(hlcm<,ri:il.?\nn 1.;)
And ille iirc.~riitIOcthc rcvi~eclI\L~ ior t'c:~;~:IIIL:~-III~~~.I~I<IIII('cntrijl
America éxpresslystates that it is "without prejudicc to the right of recourse
to other competent international forums"' (Ann. 24).

223. Contadora has approvçd not only resort to more comprehensive political
forums, but also bilateral and direct negotiating initiatives among the Central
American States. Thus it encouraged "the resumption of talks hetween the
Governments of the United States and of Nicaragua . . ."(Carabelleda Mes-
sage, 12January 1986, Memorial, Ann. 24). It has also supported various bila-
teral approaches between Nicaragua and Costa Rica:
-
the joint Nicaragua-Costa Rica Commission, created on 15 June 1982
pursued its effortsfor more than a year after the beginning of the Conta-
dora consultations;

'Originaltcxt inSpanish: "sin perjuiciodelderecho de recurrira otros foros inter^
nacionalescom~>ctcntcs". COUNTER-MEiMORLALOF NICARAGUA 345

- Contadora was instrumental in the ncgotiation of an agreement estab-
lishing a Commission on Supervision and the Prevention of Border Inci-
dents on 15 May 1984;
- in August and September 1984, the two countries undertook bilateral
negotiations under the auspices of the French Governmcut, aimed at

resolving bilateral frontier problems;
- the Contadora Group and the Support Group also endorsed the meeting
between the Vice Ministers of Foreign Affairs of the Iwo countries in
Managua on 28 February 1986;
- most imoortant of all. the ioint communiaué ~ublished in Januarv 1987bv
the ~oniadora Groui and"the Support G;ou; aftcr a peace midon Io thé
capitals of the five Central Amcrican countries does not criticize Nicara-
gua'~ Aooiications to the Coiirt. althoueh Honduras and.to a lesser extent.
C'ohi,,RI<.:I,h;~,,, l:~iin<h~~l,Lntni~.ii>~dipI~mi,ili: c.mip.itgt1:~~~III>IlIic%:
Appli<;aiicin..On thc ciiii1r;~ryi.hc ~.<iinniuniqucc'it~~~~i:isil'iii 'ihc pcr-

\ihlcn;~,01 ;,LI\ wh~h \ic~I:ilc~~il,~r~i;~I~cl.i\~\l,'~Iliclt 1sl~rc~.~h~w ,l!h:ii
ihc Ciburt i\ crii~~o\icicdii,d~.icrminr. - u..ionz ,ilI~L. 'grc:it~.%oih*13clc>
rc~idcrin~ .lt:~lt!<udtfI~:uli' (\l~.nic~rt,~l.\nncx .37.11.lS5. t~tpr~tJ
22-1.Thcrc 1, II$ic:~v~n 161hcIic\c tli~,thc *1111udc oi the C~~i1t.1J~~~ro.iuii-

irics \r.oiilclhc :in\. Jiiicrriti iii\i:irils hil;aicr:ildi~il.iiii:iii; c\rhhr.i\ir.cn
Nicaragua and u on dura Th.e reason for the fàilure of sucli sucport to ap-
pear in the record is the categorical rejection by Honduras of any bilateral
negotiations.
225. Nicaragua itsclf, as notecl ahove, has continuously sought direct bila-
teral talks with the Government of Honduras to resolve the issues between
them. Although, as noted, since 1982 Honduras has consistently rejected these
approaches, it has never cited the existence of the Contadora Group as a spe-
cial procedure under Article II of the Pact of Bogoti as grounds for its refusel.

3. The Contadora Process Cannot Be a Special Proce<lurewirhin theMeanirrg
of Article II because IfsSubject-MritterIs Distinctfrom the Dirpidtebefore the
Court

226. The Contadora process, if it issuccessful, will lead Io a diplomatic solu-
tion geared to a political compromise. The Court, by contrast. is required to
adjudicate on the sole basis of international law. Thus. the purpose of the Iwo
enercises is different: thc task of Contadora is to bring about through multi-
lateral and politic;il channels th<:conditions for a lasting peace in the whole

region. The Court is being asked to settle a bilateral dispute on the hasis of
law. The difference in the character of the controversies submitted Io the two
procedures is apparent from a comparison of the basic documents in each.
Nicaragua's Application asks the Court Io find:
(a) that the acts and omissions of Honduras in the material period constitute

breaches of the various ohligations of customary international lziwand
treaties specified in the body of this Application for which the Republic
of Honduras hears legal responsibility;
(h) that Honduras is under a duty immediately to cease and to refrain from al1
such acts as may constitute hreaches of the foregoing legal obligations;
Icl that Honduras is under an obligation to make re~aration Io the Revublic
of Nicaragua for al1injury cau& Io Nicaragua b) the brcaches of Obliga-
tions under the pertinent rules of customary international law and trcaty346 BORDER AND TRANSBORDER ARMBD ACTIONS

227. The provisions of the Draft Act of Contadora do not address any of
these legal concerns of Nicaragua. Its sole purposc is to establish for the future
the conditions of lasting peace in the region. As the Croup itself explained, the
Act

"would establish thc basis for respectful cocxislencc in the region and
would promote sustained economic and social dcvelopment and the
strcngthening nf dcmocratic and pluralistic solutions".

Il, ohlvct 1, 11ct1,dctcrminc rc~pon~~l~~l~ 11:~diq)~.ic l?ct!<ccntnc~S~fiic? ctr
tt>fi.; the ;inlotintifthe rc,uliinp rcpsr.itii>n. A niultil;itcr:il Jipl<iiii;iiicloruiii.
such as ('<int:iJi~r:i.:iildrcsiinr! thc hrotid and intcr.ictin,: prohl<ifthe r2eiun.
would be very poorly equipied to resolve legal righ&'and obligations. From
the bçginning. the focus of Contadora has becn "thc political, economic and
social problems which jeopardize the peace. democracy. siability and develop-
ment" of the region (Memorial. Ann. 9). That is vçry dillerent [rom the subject-

matter of the dispute submitted to the Court in Nicaragua's Application'.
Honduras itscll concedes this point:

"[Tlhe Contadora approach was no1 confined io a simple resolution
of legal claims: it embraces agreements on lcgislative programmes, on
military inanauvres, on levels of armaments, on foreign. militas. bases.
on arms traffic. cconomic and social matters. refueees- an~ t~ ~ ~~ ~ ~-~
lishmcnt of new organs of supervision . . [~];en Io the extent that the
proposed Act will deal with the very issues which are the suhiçct of the

oresent claims bv Nicaraeua for théinevitablc countcr-claimi bv Hon-
duras), it cannoi necess&ily 'be assumed that ihcre will be le le te
identity betwcen what the Act mi~ht contain, and what a further iudy-
ment of the Court might contain.-c o armost incvitably. to be acces-
able to al1 parties the Act resulting from the Contadora process will
have to involvc elements of compromise. Such elements are foreign to
the Court's judicial task. and thus no necessary idcniity of ireaty (the
proposed Act) and judgment can be assumed." (Memorial. at pp. 47-48.
sirprn.)'

'HondurasalsuarguçsthattheparticipationoftheIwocuuntriesintheContadorapro-
cessmakesthis 3 dispute"in respectofwhichthe Partieshaveagrecd ..lo resortta other
meansforthepacificsçltlemcntofdisputes"and thusiliscxcludçdfromthejurisdictionof
theCourtbyparagrnph2(h)ofthepurparted "new declara1ion"afHonduras.Ithasalready
been shown thütthissa-callrdnewdeclarationisinvalidineç-çr;il. and ineff~~~ ~~~ ~inst
Nicaraguainpnrticular. as a derogationfromthe 1960declarationof HondurasacceI>ting
the iurisdiclionof the Court under the OotionalClause. IIhasalso bcen shownthat this
pu$orted ncw declarationcannotaffecttheacceptanceolthç Court'sjurisdiction hy Hon-
durasunderArticleXXXlofthe PactofBogot5.The reasonsadduccdinlhischaptershowing
that theContadoraprocessisno1 a "specialorocedure"underArtic1IeI ofthePactofBoaota
are equallypotentiodeinonstrateth&thedisputeisnot one% respectofwhichthe
haveagreed .. .Ioresort Ioother meansforthepacificsetilernentofdisputes"withinthe
meaningofparagraph 2 (b)ofthepurporteddeclaration.
iHondurasruggeststhat even itheContadoraprocersisno1 a "specialprocedure"under
Court under "elementaryprinciplesofgoodfaith"byvirtueofthe DeclarationofEsqui-e tothis
pulassignedbythePresidentsofihe fiveCentralAmericanStatesinMay1986.(Memorial,
p. 47,sripru.)This suggestionis completelyunsupportable and can be dispensed with
quickly.
AsHondurasitselfrecognizes,the agreemental theCentral AmericanPresidentswas
simply . COUNTER-MEMORIAO LF NICARAGUA 347

4 To Reqiiire tllar the Cont«rlo,ir Process Has Concli<<lrdbefore Permitring

Nicaragua io Irrvokethe Jirrisdictionof rheCoiirt Woirld Not Serve the Pirrpose
of'the Exhaustion Requirement of Article IV

228. Contadora is a broadly political process, aimed at unravelling a broad
cornplex of regional prohlerns. The Croup has always insisted that it is an
exclusively politiczil forum. So have the Central American countries. In the
Declaration of Esquipulas, of 25 May 1986, the five Central American heads
of State agreed:

"that the best political forum which is at presïnt available to Central
America for the achievement of pcace and democracy and the reduc-
lion of tensions produccd iii the countries of the region is the Contadora
process" (Memorial, Ann. 26 (cmphasis added)).

229. There can be no doubt that there is a general regional conflict in
Central America. Nicaragua does no1 contest that fact nor the fact that the
Contadora process is "the best political forum" for dealing with il. It is a privi-
Irged though not exclusive way of seeking solutions to the root causes of the
eeneral conflict that has snread throuehout the reeion.

rieht to invoke oiher orocesses for the solution of bfiateral disnutes that eiist

the Statesconcerned. The parties should not be forced to choose between a pro-
cess designed to attack the roots of the general conflict and the varied modes of
dispute settlement that can help to improve bilateral relations among them.
231. Article IV of the Pact of Bogoti requires no such choice. It was
designed essentially to prevent what rnight bc called "forum-shopping" in
bilateral disputes - where a party invokes one settlement process and, if it
seems to be going against hirn, bi-eaks off and switches to another, thus avoid-

ing an adverse result.
p ~
"That the best politicalforumwhichir a1present availableto CentralAmçricafor
the achievementof peace and deniocracyand the reduction of tensionsproducrd in
countriesofthe rrgion isthe Contiidoraprocess ..."(Mernorial,pp. 46-47,saprn, and
Ann. 26.)
Nicaraguahasalwnys been, andrçmainscommittedIothisposition.IIhasalwoysbeen,
and remainspreparçd to carryout ilscommitmentto Contadoraingoadfaith. However.
thereisnothingwhatsaeverinthiscommitmentthatrequiresNicaragua (oranyotherState)
tu abandonitsconv~n~ ~nalriehtsunderthePactofBoeatdIo use theoacificnrucedures
set forth in the Pact,includinrecourse tu this Court to resr~lva srparate and distinct
bilaterallegaldisputethat isnot everiaddressedbyContadora. Indeed,the Declaration
of Esquipulas on whichHonduras's"good faith" argumentis based clcarlyStatesthst
Contadoraisthehesrpoliricolforumwhichisarprereniavailable.Therewas no statement
that Contadorawasintended to be the erclusiseforumand, inderd the languagçof the
Declaration strongly suggrsts the contrary. Morrover, thc objective of Contadora,
accordingta theverylanguagecitedtiyHonduras,isstatedas "theachievementofpeacr
and democracyandtherçduciionoftensions",no1theresolutir~n ofbilaterallegal<lisputes,
the determinationoflegalrightsand responsibilities orthe awardingofrrparations.
Thus,neither Nicaragua "or any othçr Statecommitteditself - in the Declar;itionof348 BORDER AND TRANSBORDER ARMED ACTIONS

232. That is no1 the case hcre. Nicaragua has supported and continues to
support the Contadora process. It is the only one of ihe five Central Ameri-
can~states that has exoiessed ils willineness.to adhere lo everv version of an
Act of Coniadora priposed by the contadora Croup. ~ondu;as has refused
to accept these initiatives, and in one case. Honduras organized the Teguci-
galpa Croup for the express purpose of defeating such a Contadora proposal.
233. Thus, Nicaragua is not seeking to abort Contadora or escape from it.
On the contrary. Nicaragua has affirmed that il will continue to play an active
role in the Coritadora process, and there is no reason 10douht that this is so.
The Pact of Bogoi6 cloesno1require Nicaragua to forego bilateral methods of
peacefully resolving hilateral problems in order to do si>.
234. For thcse rcasons. the bilateral legal dispute between Nicaragua and

Honduras mus1 be considered separate and distinct from the regional prob-
lems addrcssed hy ilie Contadora process. As such. the Nicaragua-Honduras
dispute is no1 subject io any "special procedure" under Article II of the Pact
that would prevent resort to the Court until the Contadora process is con-
cluded. PART III

CHAPTER 5

THE MEANING AND APPLICATION OF THE RESERVATION OF
HONDURAS CONCERNING ARMED CONFLICTS

A. General

235. The Memorial of Honduras invokes the reservation to the declara-
tion on the jurisdiction of the C:ourt dated 22 May 1986 according tci which
thc declaration "shall no1 apply" to

"disputes rclating to acts 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 il may find itself involved dirçctly or indi-

rectly".
236. The Dresent section of the Countcr-Memorial has the Dur.ose.of
r.x.,ni.niiig the iii',.,ning:~ndm.& iit.ipl>lic.~ti<,ioif the rr.>er\.iiii>nrcicrrcd

tiiiii 1112prc.i.igtu\~>:ir.igr:<ph .uit^ iriJcpr.ii.lr.nrl) oi tlic qu~\ti.,n ii'hctlicrII
13 ;ipplic:ihlc In ihc ;~iiitr'\t<ilAriiclc SXSl ci! th^ ll;i.lof IJoni,t.i

B. Admissil>ility of the Reservation

237. In the Memorial in paragraph 4.14, the Respondcnt State invokes the

reservation in the following passage:
"4.14.The Statemcnt of Facts contained in the Nicaraguan Applica-
tion of 28 July 1986, paragraphs 2-9, 11, 13-20; and the description of

the Nature of the Claim, paragraph 30,clearly demonstrate that the dis-
pute alleged by Nicaragua f;illswithin the terms of this reservation. Indccd,
the essence of thc Nicaraguan complaint is that Honduras has allowed its
territorv to hecome the hase for hostile. armed exoeditions bv the contras
and al& by the armed forces of Honduras itselfagainst ~igaragua. Thc
dispute is thïrefore necess;irily one covered by this reservation."

238. This mode of presenting a "preliminary objection" is incompatible
with the clear provisions of Article 79 of the Rules of Court. of which para-
graph 2 provides:

"The ~reliminarv obiection shall set out the facts and the law on which

239 Tlic rr.lci.int p.sri coitlie Kr.rpi)ndciii'~SIcm<lri.ilni;ike\ iit:!ltcnipt .il
prop~,r~~>myli.iii:ïnith 111:Rut<:\citlici in rc.,pc,rt<DItlic i;i~t\ or "thc I.iiiin
\ilii~litlic .,hlccii<iii is l>.i\~~I"Ihc reicrcn:~ ti, ihc tcrt ci!ihr Nicar.igu:in
Application ii disingenuous to s;iythe least. The text of an Application ii no1350 BORDER AND TRANSBORDER ARMED ACTIONS

iimo<le 'IIproof hul isJireiieJ ICIthr. purpo\cs indicaicd in Ariiclc 38. par:i-
#r;gph 2. ,>fthc Kulcs ,ifCouri. I'husttic ~\pplic;itiun is ICIconlain "a \uccinci
siaiemeni of thc isct, and ihc grciundi o!i w111cir1kt,r/<liiti.h,isi,<f"(crnphasis

supplicd). :ind ihr. purpo\c i, tu indi~atc ihc.fiicistilrlrli IIir rtiietidC,il/t~/>roir
It is uhi~lly inipropcr i,,r Ihc RcsponJ:iii tri %cl, ICI rcl~ i~pin r~.cit:il,cari-
taincd in the text of the Application.
240. Il might bc othcrwise if the Respondent were to be understood as nrl-
mitring the facts rclated in thc Application, but there is no evidence of such
intent, and such intcnt is no1 to be lightly infcrrcd.
241. The oreliminarv obiection must set out the facts on which it is based.
(Sc< Ro\cnni. 711e /-LII>(III<l'r,1<11(->f III,,/III~,~II<III(!IOI/II~S.~jlh<>li.I,!.-
den. 1365. 2nd eJ . I!lkS.p. 4.511)Kclcrciice to ihc coiiicnis of ihc r\l~l>lic:itii,ii

circumvcnts the Rulcs of Court esoeciallv when such referencc is noi accom-
panied by any facts indepcndentl~evincéd by the Respondent.
242. In any event, even if, for the sake of argument. it were in principle
appropriate to refer to the Application in the present context. the matters
related in the paragraphs of the Application citcd by the Mcmorial do not
provide any support for the proposition that those matters "originate in
armed conflicts or acts of a similar nature".
243. 'ïhus, with rcference to the paragraphs cited in the Honduran Memorial:

(i) Paragraph 2 refers to "armed attacks against thc territory of Nicara-
gua" and such attacks do not necessarily constitute an "armed conflict" (as
will be explaincd in more detail subsequently).
(ii) Paragraph 3 refers to "armed attacks consisting of sporadic forays into

Nicaraguan territory with the object of rustling cattlc and pillaging peasant
communities". It is difficult to detect the existence of an "armed conflict" in
this type of sctting.
(iii) Paraeraoh 4 refers to attacks aimed al eovcrnment installations. the
ambu;hing gf hilitary patrols. and attacks u6n civilians. Serious though
such incidents were. their occurrence does no1 of itsclf produce evidence of
an ongoing state of affairs which could amount Io an '.ahcd conflict".
(iv) Paragraph 5 merely States that these activities were the subject of

diplornatic Notes dirccted to the Honduran Governmcnt.
(v) Paragraph 6 refers to changes in the composition, training and organi-
zation of the armed bands.
(vi) Paragraph 7 refers to a single incident.
(vii) Paragraph 8 rcfcrs to the sending of protest Notcs to Honduras.
(viii) Paragraph 9 refers to the holding of talks between the Heads of
State of Nicar;igua and Honduras on 13 May 1981 at Guasaule. As will bc
demonstraled in duc coursc, the Joint Communiqué which was agreed upon

makes no rcference either to an armed conflict or to anvthine similar.
(ix) Paragraph II refers simplytoan increase in the number if armed attacks.
(x) Paragraphs 13 to 20 refcr to attacks and othcr incidents, including
aerial intrusions. and also to actions constitutine threats of force. Howevef.
such incidents and episodes are diverse in characier and intermittent. This
material does iiot produce the profile ofan "armed conflict".
(xi) Paragraph 30 conslitutes a formal statemcnt of the nature of the claim
and contains no evidence that the breaches of legal dulies specified in the
body of the Application could, with any justification, be characterized as an

"armed conflict or acts of similar nature".
244. The conclusion warranted by this examination of the material pas-
sage of the Rcspondent's Memorial is that both as a matter of form and as a COUNTBR-MCMORIA OLF NICARAGUA 351

matter of substance the "preliminary objection" presented is suhstantislly in-
compatible with the Rules of Cc~urtand consequently inadmissible.

C. Failure te Discharge the Burden of Proof

245. Apart fromthe question of the admissibility of the preliminary objec-
tion advanced by Honduras within the legal régimeof the Rules of Court.
there is a separate issue concerning the burden of proof to he discharged by a
State invoking a reservation to its acceptance of jurisdiction by virtue of the
Optional Clause. in the first place, as a matter of principle and good policy a
preliminary objection must have substance and respectability. In short. il
must not be a merc manaeuvre huilt out of formal appearance and tactical
need. In the words of Dr. Shaht;ii Rosenne:

"Thc important thing is that the document setting forth the objection
should indicatc what the facts are on which the objection is bascd. This
is ncccssary in ordcr to prcvent the right to suspend the proceedings on
the merits from bcing used abusively or frivolously. It thus accords a
rneasurc of protection to lliï State against which the objection is made.
and enables the Court to exercisï judicial control over what is techni-
cally an exceptional procedurc." (The Lirw and Pracrice of rhe I~irertio-
rionol Coiirr, 2nd cd., 1965,p. 450.)

246. In the suhmission of the Government of Nicaragua. the Memorial of
Honduras has failed to discharge the burden of proof on the relevance and
validity of the reservntion invoked. The formal and peremptory mode of
invocation adopted in the Mernorial involves precisely the type of abuse
adverted to by Dr. Rosenne in the passage quoted. As the Court observed in
its Judgment in the jurisdiction phase of the case of Nicaragiia v. UrritedSrares.
"il is the litigant seeking to cstablish a fact who bears the burden of proving
il .. .'.(I.C.J. Reports 1984,p. 437, para. 101). In the present case the Res-

pondent State has not adduced any evidence as such to justify the use ol the
"armed conflicts" reservaiion. and the formal mode of calline uo ".e reserva-
lion is no1 legally sufficient Io put iiin issue.
247. Whilst the Government of Nicaragua does not. in the light of the
fore"aine" consider ihat the Resoondeni $tate has succeeded in ~uiiine ils -
"armed conflicts" reservation in issue, al1relevant questions willbe examined
in spite of this necessnry element of contingency.

D. The Applicatii~n of the "Armed Cunflicts" Reservatinn in the Light of
the Cunduct of the Parties

248. 11is necessary to examine the meaning and application of the phrase
"armed conflicts or acts of a similar nature" in terms of objective criteria and
this examination will bc undertaken in due course. However. the conduct of
the Parties in the material period must be taken into account in that it pro-
vides coe-nt cvidence of the actual nature of thc relations of Honduras and
Nicaragua. Such cvidence is significant first, because it provides a framework
or coherent political contexl within which specific incidents can be appreci-
ated and, seiondly, bccause the contemporaneous views and conduct of the
Pa~~ies most cl~ ~ ~ ~ ~ccrned r~rovidethe best evidence of the existence or
, ~ ~ ~
otherwise of an "armed conflict".
249. When the conduci of the Parties is examined it will be seen that thcy352 BORtlER AND TRANSBORDERARMED ACTIONS

did no1 consider that an "armed conflict" existed. Moreover, their attitudes
were complelely in line with the normal cxperience of States facing abnormal
situations in their border rcgions. The occurrence of incursions. border inci-

dents and othcr episodes of violence, are commonly regarded for what they
are - illegal acts, acts constituting threats to the peace or brcachcs of the
peace - but irnless ort~ercircirm.~rattcesare presenr thcse are not considered
to amount to "war" or "armed conflict".

250. In fact, it is a matter of public knowledge that thc Governrncnts of
Honduras and Nicaraeua have not characterized thcir relations in tcrms of
';~riiicJ conflici" ,\ilcpi~o.lc iihich l!piiics ilic siiu:iiii,i> tlic i.ilks I>ctw;c,n
iht Ht,:!dsot St.itc ;IIEl (iu;i\;iulc .iiiJ lhc Jc>int('oiiiinunii,ii~!!,hichri;,\thcn
;II 1 3 , Y Il n i 121 l'lic ir.vi<iiilic J,>int C<imiituni~uC. in
. . ,
material part, is as follows:
"Amone the thcmes trcated in the meetine was in the first tcrm the

analysis orthe problcms lhat have occurredon the fronticr bctwçcn
both couniries. foreign Io the will of the Governments of Nicaragua and
Honduras. and that caused an amarent distancine.
During the mccting. hoth ex&tives agreed t&xhort the media for

social communications to moderatc the tone and treatment that are
givcn Io the problems that have been arising as the best contribution of
those media to the process of spproachment and peaceful solution to
any problem that could cxist . ..

60th executiues agreed upon the sheduling of the foltowing meetings.
The firsl mcetine 10 be effectuated in10 Teeuciealoa. at the level of
Foreign Ministcrs, ynd will have asan objectiv~th~inierchangc of opin-
ions regarding the international political situation and the rclations
between bothmistcr countrics

The second mceting 10be effectuated in Managua, will be ai the level
of Ministers of Defcnsc and Chicfs of Staff, and will have zisan cnd thc
preparation of joint plans of action Io elirninate the risks of new inci-
dents in the border zone.

130thr'vccuiivcs ni;inifcsisd thr.ir purpaw of ni;iking linoun 10 pi-
ientiûl hiqhlaikcrs ut airpl:inci cirh\>ai>ihut thcy will nui (ind. c1ihc.riii
ond dura ;r A'icaragua.'any type of protection or asylum."'

'Original text in Spaiiish:
"Entre lostemartratadosen la reunion.estuvo enprimertérmino cl analisidelus
problemasque se hansuccdidoenlalronteraentreambospaises.ajrnos a lavolunlad
de los gohiernosde Nicaragua y Honduras. y que han dado lugar n unaparrnie
distanciamiento.

Durante la reutiion. amhosmandutariosacordaron exhortar a losmediosde
comunicaci6nsoci;il, a modcr:ir el tona y tratamiento que se Ir da a losprohlçm;is
quc han venido surgiendocomo el mejor aporte de çstosmedios al procrso dç
acercamiento y pacilicasoluci6ndecualquier~roblemaque~udieraçxistir ...

~ ~ ~ ~ ~ ~
Nicaragua.ninguntipo de pratecci6noasilo." COUNI'ER-MEMORIAL OF NICARAGUA 353

251. The tex1of this document both as a whole and in detail is olainlv incom-
p.aiihl\r.iilthe eu \icncc ,il JI;irmcJ c<iiillict" in ihr.lr~,iiti~rrc$ii,n 1hi priii-
CI~;I I'CB xIr: thc,iiiipr~~~~cniv<n#tftic>rni, <!Ji.11cyuct~vtuc~nthe tu<>l.ic~\crn-
nl~ni, :aiid..in<~I~niin.iiio01 111c r~,k,,jitic\# in~iJcni, IItlic ir\,nii;r rcgi~~ii.'.
252 l hc :tIheii:c8)t:ln) ~h.tr~.~~r~~;~ti 01~nihc 1;1ct\.,nt1in.xkiit~ :,fl~;t-

ing rcl.ition\ I>ciutL,ntlic iiiii~x.iin[ric\;i> :in '.irni~.miitlia" is ;ils<!e\irlc~iii
in~keystatemcnts of the Honduran Government in subsequent years.
253. In a speech to the OAS Council special session on 14 July 1983,
Roberto Martinez Ordoiiez. Hcinduran Ambassador to the OAS. described
"the critical situation in Central Amcrica". Elaborating on this theme, the
Ambassador stated the following:

"The Honduran constitiitional government, headed by Roberto Suazo
Cordova, thoroughly aware of its duties as a member of this organization,
has eiven and continues to cive its fullest sumort and co-ooera-tion to the
efforts ofthe brother councies that make ;{the ~ontadoia Group, with
the clear objective of reaching. through a civilized dialogue and as soon as
possible, serious regional agreemenis to reach a com~rehensive scttle-

ment to the prohlems of the region.
The key issues that characterize the Central American crisis were
clearly idcntified at the outset of preliminary contacts bctween the for-
eign ministers of Colombia, Mexico, Panama, and Venezuela and the
five Central American countries, which culminated in their first meet-
ing held in Panama City from 19 to 21 April.
In the communiqué issiied by thc Contadora Group after this meet-
ing. the problem areas were identified as follows: the arms buildup, the
control of u8eapons and their reduction, arms trafficking, the prescnce
of military advisers and other forms of foreign military assistance, ac-

tions aimed at dcstabilizing the interna1 order of states, threats and ver-
bal aggression, military incidents, and border tension."
254.There is no refcrence to an "armed conflict". The most serious clements

in the list arc "military incidents, border tension". Moreover, when later in the
speech the Ambassador refers to "acts of provocation and aggression against
Honduras" thcre is still no characterization of the situation as one involving
"armed conflict" in the border n:gion. Allowing for some rhetorical embellish-
ment, the context is one of border tension and border incidents.
[255-1256. Some eight montlis later, Mr. Flores Bermudez expressed es-
sentially similar views on behalf of Honduras in the Sccurity Council. Apart
[rom various assertions that certain of Nicaragua's actions (or alleged ac-
tions) threatencd "the stability of the region", the strongest statement the

Honduras representative had ta make was as follows:
"Dcspite this democratic path which is now being strengthened in

Honduras. niv countrv is thç obiect of ae--ession made manifest throueh
a numbcr of'incidenG by ~icaGagua against our territorial integrity and
civilian population. Those elements, which have obliged Honduras to
strengthin its defenccs. are mainly the disproportionate amount of arms
in Nicaragua, the constant harassment along our borders, the promotion
of guerrilla groups which seek to undermine our democratic institutions,
and the war-mongering attitude of the Ssindinist commanders, whose
reckless. areressive statements we mentioned carlier.
We do ,t wish to get iiito a squabble with our neighbour, Nicaragua.
What we do want is to say that to cast the Central American problem in354 BORDER AND TRANSBORDER ARMED ACTIONS

terms of Nicaragua's interests. as reflected in the initial draft resolu-
lion submitted by that country is a conceptual error. It is not jus1 one
country which is affected; it is not only one country which is suffering
from conflicts. It is no1only one people which is suffering and bcwailing

the fate of its childrcn: il is no1just Honduras and Nicaragua. It is a
Central American problem, wiihout exception, and it must be solved
regionally. This view has been brought out again and again by al1Ccn-
tral Arnericans throughout the Contadora negotiation process and mus1
be reflected in the dccisions adopted by this Council." (SlPV.2529,
pp. 37-38, Uniied States Counter-Memorial, Ann. 60.)

257. These official statenients, taken togcther with the Joint Communiqué
of 14Julv 1981. indicate that the Honduran Government regardcd the situa-
tion tu héunsati~factor~ and 10 involve potcntial threats to?he peace of the
region. However, in ternis ofspecific chnrges of violent action the complaint is
essentially about border incidents and sporadic incursions.
258. This conclusion is amply confirmed by the three diplomatic Notes

addressed by Honduras to the Nicaraguan Government on 5 July 1983. 11
July 1983. and 20 July 1984. (United States Counter-Memorial. Ann. 61.)
These rhree Notes cuver a ~eriod of orle vear. The first related tu Iwo inci-
&ni> c;iuicd by mines 'i'hcsecond rc1:tir.J Io four incid:ni, co\,cring :tperiod
~,f;i(cw da?>.:inJ ihr. IhirJ lu ;isiiiglc inciJcnt.A pcrsual id ihew ihrcc Soles
provides asignificani and authenti'c commentaryupon the more gencralizcd
assessments in the speeches of Honduran representatives before interna-
tional organizations. Their contents (which are purely exparte exprcsvions of
view of behalf of Honduras) do not provide evidence of a statc of affairs

which could reason~ ~ ~bc described as an "armed conflict~~~~~~~-~ ~.woaild in anv
cdse be unusual for a government to describe border incidents and incursions
interms of an "arme<lconflict". The Honduran documentation (as tu the con-
tents of which the Government of Nicaragua reserves ils position) in thc An-
nexes tu the Mernorial confirms the picturc of sporadic border incidents sepa-
rated bath in lime and in location (scc Anns. 48-51, inclusive).
259. The cvidence of the Honduran attitude is given further confirmation
by the contents of the important Honduran Note dated 18 April 1984 ad-

dressed to the Secretnry-General of the United Nations (Ann. 25). The Court
will no douht recall ihat hy this date the Honduran Governmr;nt would be
aware of the Nicaraguan Application dated 9 April 1984 and it can thus be
assurned that the text of the Note of 18 April would have been the objcct of
considerahle attention. The Note refers to the existence of "disputes" and
makes certain accusations aeain-t Nicaraeua. but nowhere does it refer tu. or
;issunie ihc cxisicii~c of. ;in ";irmed cunilict" hcii\,~cn 1ltindur:is ;inJ Sic:irn-
gu;i In ihc \;iiiic tiin. ilic only rcfcrcncc io the pri>\i.rion,,piihc I.'nii~ilY:i-
tiona Ch;irir.r iiit, ,\rticl\: 52 coi~ccriiinr rceioiiîl ,ctilemcnt<,(Jiioutcs Y&>

reference is made to Article 39 or 51, eZhe;directly or by implication.

E, The Criteria Relevant tu the Determination of an Armed Conflicf or Acts
of Similar Nature

(a) The Cr~ncepr of an Arr~~edConflicr

260. Whilst the legal sources are replete with examinations of the con-
cepts of "armed attack", "aggression", "the use of force". "war" and su forth.
there is little or no guidance on the meaning of the term "armed conflict". COUNTER-.MEMORIAL OF NICARAGUA 355

(See, for example, Serensen (ed.). M~rnirrrlof Public Inrernnlioriul Law.
Macmillan. London. 1968, pp. 744-750; Whiternan, Dige.srof Inreriturion~il
Lnw. Vol. 10 (US Department of State Publication, 8367, released April

1968).) In so far ris the term "armed conflict" is a term of art. it refers Io a
conflict to which the humanitarian Iaw of war may be applicable or it appears
to provide the coiitemporary equivalent of the concept of "war" or "state of
war". Howcver. evcn if in certain contexis the term constitutes a term of art
with a unilorm and certain content - and ihis is a matter of doubt - for
prescnt purposes the task is to determine the meaning of the term in the con-
iext of the Honduran declaration and the "preliminary objection" .ased.
thercon.
261. There is no presurnption that the phrase thus employed hy Honduras
corresponds io any term of art or technical àefiniiion. In any case. the attcn-

dant phrase "or acts of a similar nature" qualifies the principal rcference
thoueh without necessarilv extendine ils scone.
2&. In approaching the interPGtation 'and application of the words,
"armed conflicts or acts of a siniilar nature" two sets of criteria are relevant.
The first sel concerns the mode of application of the second set, and com-
prises Iwo criteria as follows:

(i) The standard is to be based on the ordinary political judgment of an
experienced government; and
(ii) the criteria are to be applied bearinr in mind that the reservation is an
exception to an acceptancc ofjùrisdiction Ünder the Optional Clause and that
the burden of proof as to its applicaiion lies upon the Respondeni State.

263. The second set consists of ceriain objective criteria or indicia based
upon ordinary considerations ol lonic an- r>olicv.This.set will be examined
seriarbrr.

(b) ïïiere Mus1Be a Use oJArrned Force Wliich 1sPersisrenr

264. A primary element in the concept is the persistcnce of the use of
armed force. Thc occurrence of border incidents, cross-frontier incursions.

and aerial irespass does no1 amount Io an armed conflict. lndccd sporadic
violence and the commission of serious breaches of interna~ ~~al law mav
aiiJ u\ually dd ~ak~place ;is;iin\t :Ih;ickgruund aiigcner:tlly normiil rcl:iiioii,
:inJ 3 st:rbl~tcrr11t)ri:~Itat tuQUO h3sccIupon an ah3cncc ut bclliacrcni rcla-
tions and the existence of an undisoutcd and orooerlv. .rnarcacd frontier.
Border iniidcnis :incicross-fr<iniiir ;ncuisi,inï d<i n<iiforni piri 01 ;Isiiu.iti<iri
which c;in hc ch;ir:icicri~i.ci.u.ithtiut ;i 1;ip.c into cîcciiiricit,..i> ;II'.:irmcci
ci~iiflirt". As thc rrlc\:int di~l~>m.itircorrc\ri<inrlc.ncc.and oitici:il 1ltindur:in
staiements (sirpro) show, thé situation bet\;een Nicaragua and Honduras in
the material pcricid presents a <:lassicalpicture of frontier incidents and ten-

sion in thc frontier region, but an abscncc of persistent conflict hetween
armcd forces.

(c) Tlre Use oJArnred Force Slioirld Have n Marked Inrensily

265. As a matter of the ordinary undersianding of words the term "conflict"
imports a certain degree of intensily of violence. denoting a test of will invol-
ving a subsiantial cornmitment of fire power and effectives. Thus Cliarnbers
20th Cenrirry Dicrionnry (1983 edition) defines "conflict" to mean "a violent
collision:a struggle or contest: a hattle: a mental struggle". It isextremely doubt-336 BORDER AND TRANSBORDER ARMED ACTIONS

ful whether a sporadic pattern of frontier incidents and cross-frontier incursions
could bc said to attain the requisite level of intensity in any circumstances.

(d) The "Ar111ed Co~~flicr"MrrsrBe rheStihjecrof(! Norificuriotrro rheSecirriry
Coiincil in Accortl(trrcewirh Chapter VI1 of the U,iirerl Nntions Charter

266. If a Statc claiming to he the victim of acts of violence by another State
fails to make the nolificaiion to the Security Council rcquired for the pur-
poses of Chaptcr VI1 of the Unitcd Nations Charicr. the acts of violence will
not be classified by organs of the United Nations, including the Court, as an
armed conflict entailing a possible decision to take enforccment measures,
but as a matter of the peaceful settlement of disputes falling within Chapter

VI. This proposition is based upon the Judgmeni of thc Court in the juris-
diction phase of the casc of Nicnragtra v. U~lire~Sl rures(I.C.J. Reporrs1986.
p. 434. para. 94). This criterion is no1 proposed as being in al1respects con-
clusive but it is a powerful indicator of the realiiies and Honduras has not
made such a notification at any time.

(e) T?E "Arnled Cor~flirr"MILFI Be rhe Slibjecr ofu Reqiresrby One of rhe

SrcllesC<~,lcernrdfor IIelp in rhe Exercise of C»llecriveSelf-Dqfence
267. This is a common scnse indicator very similar to the factor prcviously

examined. In the Judgmcnt on the Merits in the casc of Nicor(tgriov. United
Srures, thc Court applicd this principle for thc purposc of dcciding whether
the acts of the United States in question were justified by the exercise ot the
right of collectivc self-defcncc against an armed attack. 'TheCourt cxplained
the legal position in thc following passages of the Judgmcnt:

"232. The exercise of the right of collective self-defcncc presupposes
that an armed attack has occurred: and it is evideni that it is the victim
State bcine ihe most directlv aware of thai fact. which is likelv to draw
general atïcntion to ils plight. It is also evident thai if the vi&m State
wishes another State to corne to its help in the cxercise of the right of
collectivc self-defence. il will normallv make an express request to that
effcct. Thus~i~ ~ ~ oresent instance.-the Court is'entitled'to take ac-
count, in judging ihe asserted justification of the cxcrcise of collective

self-dcfcnce hy the United States, of the aciual conduct of El Salvador,
Honduras and Costa Rica at the relevant iimc, as indicative of a belief
by the State in quesiion that it was the victim of an armed attack by
Nicaragua. and of the making of a request by thc victim State to the
United States for help in the exercise of collective sclf-defencc.
233. Thc Court has seen no evidence that the conduct of those States
was consistent with such a situation, either at the time when the United
States first embarked on the activities which were allcgcdly justificd by

self-defencc. or indccd for a long period subsequcntly." (I.C.J. Reporrs
1986. p. 120,paras. 232-233.)

(f) There Miisr Be (IRecognirionof Belligerencyun(/ ofrhe Applicnrion of rhe
Lnws of Neirrrnliryvis-à-visu Third Srnre

268. Inany normal context the existence of an armcd conflictposes the ques-
tion of relations beiween the protayonists and neutral States. Ii is absolutely
clear that at no stage have relaiionsbetween Nicaragua and Honduras been O-f
a character which called in question the application of thc law of neutrality. COUNTER-MEMORIAL OF NICARAGUA 357

(g) The ConriifiredE.risrenceof u Purrernof Noriira/ Dip/onfaricand Econonzic
RelarionsCrearesa SrrongPresrrnlprionagainsi the Existenceof un "Armed
Conflicr" beriveenrheSluresConceriied

269. This is an evidential indicator which reflects the realities of interna-
tional life. In fact. throughout the relevant period Nicaragua and Honduras
have maintained ;ipattern of normal relations. The pattern of normal rela-

tions bctween thç Iwo States includes thç following clements:
(i) The maintenance of diplomatic relations.

(ii) The continuance of trade relations.
(iii) The maintcnance of road, rail and air links, and postal and telegraphic
communications.
(iv) No termination or suspension of treatics on the supposition that a state
ol war or armed conflict justilied such action.
(v) An absence of restrictions of the kind normally imposed upon the na-

tional~of a hostile neighbour in lime of war or armed conflict.

(h) TheAtririi<le of Tllird Srarerin Recognizing111A ebsenceof lin ArriredConflicr

270. An important evidential factor in the determination of the existence
or otherwise ofan "armed conflict" or "acts of a similar nature" in the rela-
tion bctween the parties is the attitude of third States in recognizing the ab-

sence of an armed conflict. In the nature of things much of the evidcnce is cir-
cumstanlial in thsit third States omitted to chariÏcterize. either exoresslv or bv
implication. the situation in the lrontier region as an ..armed cbnflici". hé
omission can only be recorded as a matter of gcneral and public knowledge.
271. In addition, there are a substantial numbcr of multilateral declara-
lions and resolutinns of the political organs of the United Nations which do

no1characterize the relation between Honduras and Nicaragua in terms of an
";irmcd conflict" or "acts of similar naturc".
272. The rçlev;int instruments include the following:

(i) "Note by thc United Nations Secretary-General on 'The Situation in
Central America"', S/16041. 18 October 1983.(Ann. 25.)
(ii) United Nations General Assembly resolution 38/10. II November 1983.
(Ann. 26.)
(iii) Security Council resolution 530 (1983). 19May 1983.(Ann. 27.)

273. The last-mentioned instrument is of particular significance. One of
the principal consider[rir<lato the resolution provides as follows:

Dreply coi~cerned , n the one hand. al the situation prevailing on the
inside of the northern border of Nicaragua and, on the other hand, ar the
conseqirenr<Iuifgerof a milirrrry confronruriorrherween Hondirrus and
Nicrrragitri.which could further aggravate the cxisting crisis situation in

Central America . . ."(emphasis supplied).
274. Thi~ ~~~~lution was adonted in Mav 19x3and it characterizes the situ-
- r ~ ~ ~ ~~~2
ation prevailing on thc northern border of Nic;iragu;ionly in terms of a "con-
scquïnt danger" of a "militarv confrontation betwccn Honduras and Nicara-
-ua". 0hvioÜslv. ,,ch a charactcrization is a considcr;ible remove from the
existïncc of an "armed conflict".358 BORDER AND TRANSBORDER ARMED A~IONS

275. In conclusion, the attitude of third States. as evidence in the resolu-
tions of the political organs of the United Nations and otherwise, confirmed
the absence of an "armed conflict" on the northern border of Nicaragua
during the material period.

F. The Application of the Criteria in the Present Case

276. The cumulative effect of the crileria and indicia reviewed above is to
rule out the av~lication of the "armed conflicts" in the circumstances of the
oresent case. ~hilst there has been a series of incidents of which Nicaraeua
has cause to complain, there is, of course, no equivalence hetween breaches
of international law and an "armed conflict". The relations between Nicara-
gua and Honduras in the material period did not involve a belligerency. The
relevant statements from the Parties, and from external sources such as
organs of the United Nations. reveal border tension and sporadic incidents.
Thev do not indicate the existence of an "armed conflict". The exercise of
poliiical judgment by experienced governments bath within the region and
elsewhere did not result in an evaluation to the effect that an "armed con-

flict" existed.
277. The incidents cited in the Nicaraguan Application form particular
delictual episodes and there is no evidence adduced by the Respondent to
establish that these incidents involved "'firclsor sitiralions originaring in
arnred co~iflicrsor ocrs of a similnr nariire". Nor is any evidence adduced by
the Respondent to establish that the "armed conflicts or acts of a sirnilar
nature" were of a kind "which may affect rhe rerrirory of rlreRepriblicof Hon-
drrras". Nor is any evidence adduced to establish that the "armed conflicts or
acts of a similar nature" were thosc in which Honduras was "involved direcrly
or indirectly".
278. These imoortant conditions set forth in the Honduran reservation
present issues of tact which, it is submitted. cannot properly be determined
on the basis of inference or presumption. The issues are to be approached on
the basis that the reservation is an exceotion to an accevtance of iurisdiction
under the Optional Clause and. further,'on the basis thai the burden of proof
as to the application of the reservation, and in particular the proof of critical
elements of fact, lies upon the Respondent State.

G. The Reservatioo Does Not Possess an Exclusively Preliminary Character

279. Whilst the Government of Nicaragua does not consider that the
";iriiied ionfliri\" rc~erv;itiu<iiIlondur;is 1siipplic~blc IIIthe iircumsI:incr.,.
lt I\nece\,:rrv to :u;iniinc311 th< pertinent question.. in spiir. of thi; inc\.i-

t.<hlci>ro\i;ii. IIIthe iirîum~t:inccï ,ni tlic c;i>ethiscsiroiIr: ~u~tific:ttforn
decid;ng that in any event the reservation concerned doe;not possess .'an
exclusively preliminary character" and ihus the question of its application
should be postponed for determination al the stage of the merits. In the juris-
diction phase of the case of Nicarrtgirov. United Slares, thc Court recognized
that such a way of proceeding was open to it in accordance with Article 79,
paragraph 7, of the present Rules of Court (I.C.J.Repens 1984, p. 425, para.
73; and sce also the Judgment on the Merits, I.C.J. Reports 1986, pp. 31-32,
para. 43). COUNTBR-MEMORIAL OF NICARAGUA 359

280. The "armed conflicts" reservation of Honduras is pre-eminently qua-
lified for this procedure for two reasons. First. and as a maiter of essence.
the issues of fact and law which il inevitably presents cannot be approached
eiiher effectively or convenienily at the jurisdiction phasc. The reservation
trenches on questions of evidence and the essential legal meriis of the case to
such an extent that trealment at the meriis phase is both approprisiie and
necessarv. Indeed. the circumst;inces are closelv varallcl to thosc altcndinr
h niui~itril lit rirti~i II suc in 1 .c. l 'I..I . C'riiiril

.Sl<trcsi..hcrc ihc (l,iurt disp,l~~J of ihc pcrtiiic,iiii>t>lr.iiii.I-riil& th< iiicriis
phn~ (1 (' J. K~~,>~II I.<ih. pp. 2')-73.p,1ri)\.77-5181 Ili r>ilrticuliir.Ihr. ';irmrd
conflicis" reservation prese-nts "a quisrion concerning matter, of substance
relating to the merits of the case". (I.C.J. Reports 1984. p. 425. para. 76: I.C.J.
Reports1986. pp. 31-32. para. 43.)
281. The zrounds for Dostoonement to the merits ohasc cannot be those of
efficiency an; convenicnce ajonc. To determine the applicability of the reser-

vation during the present phasc would involve preiudging the meriis at a
point when the acïual siatc of the pleadings on ihé mSteÏs relating to the
reservation is highly unsatisfactory, given the superficial and peremptory
mode by which the Respondeni State has purportcd to invoke the reserva-
lion. The Res~ondcnt's Memori;il docs not adduce anv evidence whatsoever.
.ind ihc rcfcrcncc to ihc conl.~~i, i~fih~.,\lilil~i.~iiuis nui :in ;icccpi:ihlc iorni
oi acl~luc~ng cvi~lci~~~ ,II AppI!~.;tiion 13 .iit~rn~~ IIUIICC ,>l(1tim. r\c<ordiiig
ii~ihc RUIL*oi Ctiurt. it inii~lvc. thc 'iiistiiuii<in ~i~r~,c~~~diii~:~ in"J nui th<

beginning of the pleadings.
282. The foregi~ingconsiderations lead inexorably to the conclusion that
the preliminary ohjcciion of Honduras hased upon its "armcd conflicts"
reservation should be determiiied not to possess an exclusively prelimi-
nary character and. consequently, should be adjudicated upon al the merits
stage.

H. Suhmissions Kelating te the "Armed Coniiicts" Reservation and "Pre-
liminary Ohjection'' of Honduras

283. On the basis of the consideration set forth in the previous paragraphs

the Government of Nicaragua presents the following submissions.

(il) The "preliminary ohjcction" hased upon the "armed conflicts" reserva-
lion of Honduras is prcsenti:d in a mode which is inconipatible with the
Rules of Court and is consequently inadmissible.
(b) The burden of proof in respect of the matters of fact which must be
proved in order to jusiify the application of the reservation has no1 been
discharged by the Kespondent State and consequently the "preliminary
objection" based upon the rcservation has not been put in issue.

(c) There is no evidence adduced by the Respondeni State to justify the ap-
plication of the "preliminary objection" concerned.
(ri) The conduct of the Parties at the material period is incompatible ulth the
existence of an "armed conflict" or "acts of a similar naturev.
(e) In any event, the facis as revealed in availahle documentation and as
matters of public knowledge do not constitute "an armed conflict" or
"acts of a similar nature'' ;iccording to objective criteria and relevant
indicia.360 BORDISRAND TRANSBORDER ARMED ACiIONS

(fi Without prcjudicc 10the Ioregoing. the "preliminary objection" does
not, in the circumstances of the present case. posscss an exclusively pre-
liminary charactçr in that ihe issues of fact and law which il inevitably
presenis cannot be determined effectively at the jurisdictional stage of
the proceedings. PART IV. THE ADMISSIBILITY OF THE APPLICATION

284. Honduras contends in Chapter II of its Memorial (pp. 33-39, sirpra)
that Nicaragua's Application is "artificial" and vague. According to Honduras,

"[tlhese characteristics 01 artificiality and vaguencss are in themselves
grounds upoii which the ailmissihility of the Application ought to be
denied" (ibid p..,3,supra; see also pp. 48, 80supra).
Taking this further, Honduras suggests that these considerations somehow

run counter to the "justiciability"of the dispute, not "inherently" (p. 56,
s~iprcr),but because of the circumstances in this particular case. Consequent-
ly, Honduras invites the Court to "refrain from exercising its judicial lunction
in these proceedings" (p. 13,supra;cf. also pp. 37, 39supra).As shown be-
IOW,these arguments are completely without merit. CHAPTER 6

NICARAGUA'S APPLICATION IS FULLY ADMISSIBLE AND
JUSTICIABLE

285. As shown bclow, the Application lodged by Nicarsigua against Hon-
duras on 25 July 1986is neither artificial nor vague. To the contrary, it fully
meets the reqiiirements of the Statute and Rules of Court by succinctly staling
the nature of the acts taken by Honduras against Nicaragua. and the legal
orincioles and rules contravened bv those acts. Moreover. evcn if Nicaragua's
'Applkation wçre in some way artiiicial or vague - it is no- that would not
be sufficient reason to declare the Application inadmissible. Similarly, Hon-
duras errs in attributing improper political motives to Nicaragua based on the
filing of the Application -but even if Honduras were correct, the existence

of political motives would not impair the Application's admissibility. since
the Applicaticin rel;ites to a perfectly "justiciable" dispute.

A. The Application 1sNeither Vague Nor lncumplete

286. Honduras repeatedly refers Io the purported "vagueness" and "in-
completeness" of Nicaragua's Application (Memorial, p. 13. siryra; cf. also
pp. 34, 37, 38, 48, 80, sirpro),and contends that "the facts and grounds on

which the claim is based" are not stated with sufficient precision (cf. ibid., pp.
37 er seq., srrpra).
287. The conditions to be met by an Application submitied to the Court
are laid down in Article 40. paragraph 1. of the Statutc and Article 38. para-
graphs 1 and 2. of the Rules of Court. These Articles providc:
Article 40 oi the Statute:

"1. Cases are brought before the Court, as the case may be. either by
the notification of the spccial agreement or by a written application ad-
dressed io the Registrar. In either case the subject of the dispute and
the parties sh:ill be indicated."

Article 38 of the Rules of Court:
"1. Whcn proceedings before the Court are instituted by means of
an application addrcsscd as specified in Article 40, paragraph 1. of the
Statute. the application shall indicate the party making it, the State
against which the claim is brought, and the subjcct of the dispute.
2. The application shall specify as far as possible the legal grounds
upon which the jurisdiction of the Court is said to bc based: it shall also
specify the precise nature of the claim. togethcr with a succinct state-
ment of the facts and grounds on which the claim is based."

288. As is apparent. paragraph 1 of Article 38of the Rules of Court isdrafted
in almost exactly the same way as Article 40. paragraph 1.of the Statute, adding
only a number of limited provisions. Paragraph 2 of Article 38, on the con-
trary, strengthens the statutory requirements, but it too iniposes only limited
obligations upon Stsitcs, as attcstcd by the expression "as far as possible". COUNTER-MEMORIAL OF NICARAGUA 363

289. This carefully drafted formula first appeared in Article 32, paragraph
2, of the 1936Rules of Court (which corresponds to Article 38, paragraph 2, of

the present text), for which the preparatory work unmistakably demonstrates
that this was simply a recommcndation to States and not an obligation which.
~f ~ ~ ~~-nectcd. would render thi: Aoolication inadmissible (cf. PC.1.J.. Series
D, 3rd udj;. pp. '156 etseq. and p. 574).
290. This coincides, furthermore, with the position of the Court itself:

"The Court notes that whilst under Article 40 of its Statutc the sub-
ject of a dispute hrought before the Court shall be indicated, Article 32
(2) of the Rules ofCourt reyuires the Applicant 'as far as possible! Io do
certain things. These words apply not only to specifying the provision
on which thc Applicant founds the jurisdiction of the Court, but also to
stating the precise nature of thc claim and giving a succinct statement of

the façts and grounds on which the claim is based." (Northern Carne-
roons, Preliminary Objections,I.C.J. Reports 1963, p. 28.)
291. In applying these provisions, the Court has always adopted a very

flexible attitude and taken "a brciad view" (Société commercialede Belgirlire,
P.C.I.J., SeriesNB, No. 78, p. 173).In so doing. it has remained faithful to ils
own jurisprudence, whereby: "The Court, whose jurisdiction is international,
is not bound to attach to matters ol form the same degree of importance
which they might possess in municipal law." (Mavrommatis Palestine Conces-
sions case, P.C.I.J., SeriesA, No. 2, p. 34; cf. also Certain German Interesrsin
Polish Upper Silesiri,Juri.sdiction,P.C.I.J., SeriesA, No. 6. p. 14; Northern

Can~rroons,I.C.J. Reports 7963, pp. 27-28; Military and Paran~ilitaryActivi-
fies in and against Nicaragiia, Jirrisdicrion and Adniissibility, I.C.J. Reports
1984, pp. 428.429.)
292. A rcmarkable illustration of this attitude is to be found in the judg-
ment pronounced by the Permanent Court on 14June 1938,in the case of the
Phosphutesin Morocco. France rcquested the Court to declare the applica-
tion inadmissible on thc ground ihat:

"[tlhe Royal Italian Government has not clearly explained the grounds
ofjurisdiction on which it relies in hringing the case before the Court hy
Application and as, accordingly, it has not adequately complied with
the terms of Article 32' of the Rules of Court" (Phosphatesin Moi-occo.

P.C.I.J., SerierA/B, Nu. 74, pp. 16-17).
The Court rejected the objection. noting

"[tlhat the explanations furnished in the course of the written and oral
proceedings enable it to form a sufficiçntly clear idea of the nature of
the claim suhmitted in the ltalian Government's Application" (ibid.,
p. 21).

293. This holding clearlv demonstrates that the admissibilitv of the Avvli- . .
~.itic,nil<lc.nul .IcpriiJ ,71115 pr:cl\lcm: uh:it ni:itrc.r1, 1h;iiihc Ciiurt sti~~uld
hc ,,hl: IO ;l;(~uire.tli.,nk,ta!~hc*ritt~n .in.I<>raiprc~.ccJ~~~gh."~uiii:i~~ntI!

C I I ,,ithc n.,turr. i>iihr,cl:iini iorniul:itc.in tti~ ,\ppli<:ition.
294. There are, moreover, excellent legal reasons why-this is so. As was
pointed out by Judge Read in his opinion in the Certain Norwegian Loans case:

'Article32 has sincebecome Article38 of the RulesofCourt.364 BORI>ER AND TRANSBORDER ARMED ACTIONS

"The Statute. by Article 40, imposes on the Applicant Government
the requiremeiits that 'the subject of the dispute and the Parties shall be
indicated'. It does not rcquire that the issues shall be defincd; and. in-
deed. it makes il abundantly clear. by Article 48, that thc dcfinition of
the issues by submissions is to be done in the course of the Written and
Oral Proceedings'. Applications have usually contained statemcnts of
the issues involved; but these have been treated by this Court and the
Permanent Court as indications ofthe nature of the case." (I.C.J. Reports
1957,p. 81.)

295. It should be remembered that the Application must indicate "the
suhjcct of the dispute" (Art. 40. para. 1,of the Statute and Art. 38. para. 1,of
the Kules ofCourt) and, "as far as possible", "the precise nature of the claim"
(Art. 38. oara. 2. of thc Rules of Court). However. the "submissions" aooear
only in ihé Memoriel and counter-~ehorial (Art. 49 of the Rules of c&).
Indccd. the "final submissions" are made only "at the conclusion of the last
statement made by a party at the hearing" (Art. 60. para. 2). and until that
timc. it iscustomary for parties to be able to modify their conclusions. pro-
vided the nature of the dispute is not modified (cf. Sociétécotirtr~ercialede
Belgiqire,P.C.I.J.. &.ries A/R, Nu. 78. p. 173;M. Bos, Les condi1iorl.s rliprr1c2s
en droit birernarionol~~rrhlic,Bibl. Visscriana. Vol. XIX, 1957, pp. 176 et seq.;
Sh. Rosenne, The Law
(r~irProctice of the It~rernotionalCoirrr,Sijtholf.Leyden.
1965.2nd ed., 1958.pp. 584-589).
296. Thus. the Application introduccs the case. and lays down ils outline
in a general fashion. But it does not imprison eithcr the partics or the judges
in n rigid framework and, contras. to what Honduras seems 10think. it is not
exo.~ ~~ much less rcouired to be a "miniature version" of thc case it is
putting forward.
297. Honduras does not contest chat Nicaragua's Application indicates
"thc party rnaking it", "the State against which thc daim is brought" and "the
subjcct of the dispiitc". Similarly, it does no1 appear to consider that "the
nature of the claim" is insufficiently precise.
298. Instead. Honduras focuses principally upon the requiremcnt of Arti-
cle 38 (2) of the Rules of Court that the Application provide a "succinct state-
ment of the facts and grounds on which the claim is based". Nicaragua has
certainly provided such a statement. Honduras claims, however.

"that a large numbcr of the matters put forward by Nicaragua do not
constitute concrctc acts or omissions. idcntifiablc by rcfcrcnccto place
and to timc. In reality, those mattcrs are concerned with indctcrmi-
nate situations or with opinions about intentions." (Mernorial. p. 37,
sirpra.)

In Tact.the oortions of the Ao..ication cited bv Honduras do al1relate to con-
crctc acts or onii,ii,in> h! Honilur:~, Ai ihc nppropri:itc iimc. th:it i\. iluring the
mcrits ph.isc,<ifthe c;isc. thc (i<i\,crr~iiioliNIC:I~.I~Uw :I~ll\ul>nlit c\.idc.ncc
th;ii clc,irl\ dcnioiistrsic\ thIOhc th< s;irc At !hi>r>oiiit - ;ind thibi\c\cn
more true.of the application stage - therc is no obligation for the Applicant
Statc to produce the çvidcnce that supports its claim (although somc of that
evidcnce is includcil simply by way of illustr;ition in the exhibits attached to
this Counter-Mcmorial). One of the main objects of the subsequent pro-

'Inihirreeard.theFrenchtexi ofArticle48showsihalthisis so.whilethe Englishtex1
isobscure. COUNTER-MEMORIA OF NICARAGUA 365

cedure is to prove the facts, and one wonders what useful purposc could be
served by this procedure if the Applicant Statc had in Iimine liristo supply
absolute proof of al1the facts on which its case is based.
299. In the 1936and 1972 Rules, paragraph 2 of former Article 32 (which
subsequcntly bccame Article 35 zindthcn 38) of the Rules of Court spccificd
that the "succinct statement of the facts and grounds" which had to he con-
tained "as far ;is possible" in the Application. was to be dcveloped "in the
Memorial, to which the evidence will be anncxed". According to authorita-

tive commentators. the fact that this specification was abandoned in the 1978
Regulzitions
"in no wav nrovidcs that the Court intends to accent in future that de-
velopmen;s 'and supporting proof be appcnded ti the application. It
would rnther seem that it considcred this provision to be pointlcss in vicw
of well-established practice."' (Geneviève Guyomar. Cofnmenroire.~ 1/11
Règlenrcnrde la CoiIr inrernarron<rld eeJilsrice.Paris, 1983.p. 239: cf. also

Shabtai Rosenne. Procedire in the 111ternntior1n Cloiirl,Nijhoff. The
Hague, 1983,p. 92.)
300. The second contention made by Honduras regarding the vagucness of
thc Appliczition is cqually withoiit nierit. Honduras argues that

"another large group of rnatters put forward by Nicaragua in this Appli-
cation consists of rnatters containing only a reference to the year in
which thcy zlllegedly took place. without any geographical location on
the territorv in which thev occurred. That is inadmissible. bcarine in
mind oit th; i>nchtinil tha'tsuch maticrs :ireuscd ;i h:isis fo311;$:1-
iii)ns,il;iicry grii\,c n:ituri. which r;tngr.from iiitcrvcntioii in the iiitcr.
n;il :~rf;i,~f Slc:iracu;#IO ihrc:itsof or the ux 01 torcc ;ae.i1n\tXicara.
gua." (Mcmorial, p.37, sirpra.)

Honduras rcfcrs in particular 10 items 4. 6 and 13(which are general presen-
tations) and item 21 (which docs not describe facts but introduces the subsï-
quent presentation of the "legnl grounds on which the claim is bascd").
301. As already shown, the Application is no1 the right place to detail al1
the various facts on which it relies. Indecd. in the present case. the "statcrnent

of lacis" could not have been kept "succinct" had il been necessary to provc
.~~nt bv~,oint the various hreaches of international law which have to bc
attributed to Honduras. Nicaragua is. of course. prepared to establish thcse
breaches in a dctailed and exact manner dur in^ the subsequent stages in the
procedure. when such detail beci,mes appropriate.
302. Moreover, Nicaragua has. in itcm 19of the Application, already pre-
sentcd by wsy of example some of the most serious acts committed by Hon-
duras in violation of international law. As the Permanent Court rccognizcd
in the case conccriiing the Prina? von P1es.s Adn~inisrrurion, this approrich -
presenting certain facts in the Application by way of examplc - is iiicon-
formity with statutory and regulatory requircments. (Order made on 4 Fehru-
ary 1933, /'.C.I.J.. .SeriesA/B, No.52, p. 14.)
303. Honduras attempts to strengthen ils argument of inadmissibility by

'The orieinûFrench text:
'iw prouic JU tut11<IU?IaI"ou, :#LIt'tr!Ien~~dn;a<lnietir2 I':ir~.i[uc Icl
J2\cli>l>pqmcnic.iprcui~.,:,t'.~ppu,<iieni]oint\31.9icquii'Ilrcn1hlrr;iiipluiibi
~.'cll~ii~~,ii~i<lr'r2iciii.iliin<~r~li~~i~iuiilc.cc.mriinuJ'unc .r>r;.iiuir.!i
enracinéea présenten cetternatiere."366 BORDER AND TRANSBORDER ARMED ACTIONS

suggesting that "the lack of any geographical location" makes certain of Nica-
ragua's charges impossible to prove (or disprove) because of the inhospitable
and inaccessible nature of the frontier area. According to Honduras, the lack
of geographical specificity "makes the task of Honduras in conducting its
own investigation into the allegalions virtually impossible" (Meniorial, p. 38,
srtpra).
304. This point, however, has no bearing on the admissibility of the Appli-
cation. An applicant's case is "no1 to be ruled out as inadmissiblc in litnineon
the basis of an anticipated lack of proof" (case concerning Milirury und Parfi-
niilirary Acriviries iii and rigainsr Nicuragria, Jiirisdicrion of rhe Corrrr and
A~lniissibiliryof the Applicorio~i,I.C.I. Reports 1984, p. 437). Instead. ques-
tions of the sufficiency of proof must be dealt with at the merits stage of a
case, where each party is required to adduce sufficient evidence to support its
submissions to the Court. As the Court stated in Milirury and Paramililary
Acriviries in utid against Nicaragi~ri,J~rrisdicrionand Adnrissibiliry:

"the Court is bound to observe that any judgment on the merits in the
present case will be limited to upholding such submissions of the Parties
is have been supported by sufficicnt proof of relevaiit kiçts. and are
rcgarded by the Court as sound in law .. Ultimately, however. it is the
litigant seeking to establish a fact who bears the burden of proving it; and
in cases ivhere evidence may no1be forthcoming, a submission may in the
judgment be rejected as unproved ..." (I.C.J. Reporrs 1984,p. 437.)

Thus, Nicaragua cannot prevail unless the evidence satisfaclorily establishes
the validity of ils claims.
305. Hondurasappears to fear that in this case it will be especially difficult
for it to adduce evidence of the facts it relies upon. In fact, the obstacles 10
gathering cvidence pertaining to acts occurring in the frontier area are at
least as great for Nicaragua as for Honduras. But even if Honduras should
cxperience special difficulties in this regard, the Court has previously de-
clarcd itself willing to admit:
"a more liber;il recourse to inferences of fact and circumstantial evi-

dence. This indirect evidence is admitted in al1systems of law, and its use
isrecognized as a special weight when it isbased on a series of facts linked
together and leading logically to a single conclusion" (Corfir Channel.
MerNs,I.C.J. Reporrs 1949,p. 18).
306. Thus, the difficulties invoked by Honduras cannot in any way be
regardcd as insuperable. Morcover. as already noted. those difficulties are
not peculiar to Honduras, and more importantly, are not grounds for declaring
the A~~lication to be inadmissible.
30j.'~onduras's final objection to the drafting of Nicaragua's Application

is Honduras's claim that the Application "deliberately confuses facts of a dif-
ferent nature and which can be aitributcd 10 different causes" (Mernorial. o. 38.
srtpra). As the principal example of this alleged obfuscation, Honduras ciaims
that the Application attributes to Honduras certain acts which Honduras
claims may-only be imputed to the "conrras". Of course, the assistance sup-
plied by Honduras to armed Somocist groups operating from ils tcrritory,
and the responsibility accruing to Honduras because of that assistance. is one
of the main grievances prrsentcd in the Application, and one of the main
points which the Court is requested to elucidate at the merits phase of the
case. Certainly "the existence of any fact which, if established. would con-
stitute a breach of international obligation". to quote the very tcrms of Ar- COUNTER-MEMORIA 01I'NICARAGUA 367

ticle 36..oara",anh 2. ,f the Statute.~.s~ ~1a ooint thal can or shouldbe deter-
mined ai this stage. where the preliminary objections are being exarnined.
308. Honduras's second complaint of deliberaie obfuscation concerns the
incident that occurred al the frontier on 18 Aoril 1985.cited in oaraerar.h 19.. .
of ihc ,\pplic;iii<in. C:lr.;irly.ii prc,i.c;iviolnti<inoi w;ii~.rstr.hichs<,nieundcr
Nii;iriigu;in jurisdicii~>n.iiloiig ii,ilh ihi u\c01 iirmcd fc~rsc.hlls %,:IIivilhiii
the \c\onr. i~f the hrr.:ichc, of ihr. rulcs 01 inierna1iun:il Iaw ii~r\!,hich Sic.ir;i-
gua is cntiiled tu reproach Honduras. Howevcr Honduras now wishes to
characterize this incident, it is up to the Court tu determine whether breaches
of international law occurred and, if su, their nature and consequenccs. Fur-
thcr. it is somewhat astonishing that Honduras should find anything confus-
ing ;ihout this example: in the "Chronology of Incidents with the Repuhlic of
Nicaragua" which Honduras has itself supplicd tu the Court. as Attachment
No. 48 to ils Memorial, Honduras lists as many as 31 incidents which occurred
at sea and,it would seem. in the territorial waters oc the Parties.

309. Although al1the arguments invoked hy Honduras in support of the
alleeed inadmissibilitv of the Arioli.a.ion lack anv consisicncv. thev aooear . ..
uliikaicls ti,rcducc ii~:in arcunient th;it \iiaragi;:i II:I\no! v<i iupplied the
Couri uitli dei;~iI~Jc\,id~.n~.1 rnsupport of ils clitiilis r\\ sliou,n. hi,ircvi.r. !hi,
is no1the ouroose of the ~ooiicatiUn. which should be confined Io "a succinct
statement'of ihe facts and giounds on which the claim is based": rather. this is
the purpose of the procedure on the merits.

B. Nicaragua's Application 1sa Fully Justiciahle Legal Dispute

310. Honduras also complains about the Application's purported "arti-
ficizility"(cf. Memorial, pp. 13,48 and 80, ctc., sriprn). This argument seems
to be brokcn down into two paris.: first,that Nicaragua had political motives
for filing the Application; and second. that hy applying tu the Court, Nica-
ragua has attcnipted in an arbitrary fashion io split up a gencral conflict in-
volving Central America as a wholc into sevcral hil;iteral disputes.

311. Honduras contends that this case is no1"justiciable". Conscious of the
fact that ihe Court firmlv reiecied a cornoarable areuincnt nul forward bv the

disavows the view that sucha disoute is "inherentlvoon-iusticiable" (Memo-
rial. p. 56.ritprit,.IIni,ncihclc\\ î;,ntciid~ th:,[ ~~ilic'~~iur;sh<iulrdcfr.."lin ircini
c.\crci\ing iis judicinl functisin in thc\c ~~roccerlings"(<hril.p 13. irtpni) ,\l-
ihourh 11sratinntile is noi clc:tr. I-lundurs cl;iims ilial "ihc rr.uuirciiicni~ Icir
the &e administration of international justice will he adverseh affected" by
taking a bilateral approach to a regional problcm (;hi</..p. 34, srrpra; cf. also
pp. 39 or 48. s~rpra).
312. Thus. without invokine orec..e,leeal rcasons. Honduras invites the
Ci~urlni>t is cur,rci>c iiifuniiii>ni. inuih niorr. for rciiwn> <ifcxpr.dicnc~ih.in
,>flai\,The Couri shi,uld iitJuuhi rciusc IO tnkc ;ipi>siiiunon .i:sir. ifIIIs<i
doing. il has 10 cxceed the "iiiherent limitations" in ils judicial function
(Norlhcrn Ccr~ilero»nsI ,.C.J. Reports 196.7,p. 30). ln thisparticular case. how-
cver, noihing of this kind has been, or could be, ûllegcd by Honduras, which
exprcssly admits that the claim is not "inhcrently non-justiciable".

313. Morcover, the Court has always considercd that il should not pick and
choose from among the cases suhmittcd tu it. In the Nircleur Tesrscase, for
example, thc Court found that the clûimswcre groundless. but went on Io stale:368 BORDER AND TRANSBORDER ARMED ACTIONS

..Thi\ i.:no1 io\:iythai ihc Cuuri m:i? \elcii (rom thc ia\c\ ~iil>niiiicJ
IO IIthme 11fceli suit:ihlc Ior ~urlgniciii\i'hil~.rclusinIO gtrc judgntciii
in uiher>." (1 CI. Hepurt., 197-1,p. 271.)

Indeed, once the Court has been rcgularly seized, il must give judgment:

"Where ...claims of a legal nature are made by an Applicant against
~ ~ ~oondent in orocecdines before the Court. and made the suhiect of ~,~~
~uhini~,ioni. ihc Couri h;ir iiiprinciplc nicrcly in dccicl*:iipon ihcsc
uht~ii~n . . " (iliilri,!ry utri1 I'orrr~irrl~,~or,iri,.,111o!r<li,giior\r
h'~c~rrdgti<J~~,rrr\tlrrr~o~ortr~lA~I~?ii.~.~rhrr~,J. Hepor/%1934. p 43 l.)

314. Furthermore. in the present case, none of the objections raised by
Honduras should lead this Court to refuse to exercise ils judicial functions.
Honduras objects first 10 the political motives which il claims inspired Nicara-
gua's Application. In ils view. this "is a poliiically-inspircd, artificial request
which the Court should no1 entertain consistently wiih its judicial character"
(Memorial, p. HO,srrprn; cf. also pp. 13,20, 48, etc., sr<pra).If the Government

of Honduras means by this that the dispute submitted to the Court is "political"
and does no1 cnter in10 the category of "legal disputes" laid down in Article
36 of the Statute, it would merely be artificially rc-opening the old and futile
quarrel about the distinction between justiciablc and "non-justiciable" cases.
315. Clearly, the case that Nicaragua has brought hefore the Court has a
political origin and poliiical causes. This is truc of al1disputes between States.
As Hans Morgenthau wroie:

'.[A]ny external action by a State in fact involves ils relationship with
other States aiid. from the standpoint of the goal pursued, al1external
action by a State is thus always political"' (La notion du policiqire et la
théorie des rlifféren(1sinternationaux, Sirey, Paris, 1933, p. 25; cf. also
Hersch Lauterp;icht, "La théorie des différends non justiciables en

droit international", RCADI, 1930-IV. Vol. 34. pp. 563-564, or Guy de
Lacharrière, La politiqrre juridiqrre extérieure, Economica, Paris, 1983,
passim, in pariicular pp. 150-151).

316. All international disputes thus have political and legal aspects.
Viewed from a particular angle. they appear Io be political, and viewed from
a different angle, they appear to be legal, as ihe Couri found in ils Advisory
Opinion of 20 July 1962:
"11has been argucd that the question put to the Court is intertwined

with ~olitical auestions and that for this reason the Court should refuse
to gice an opinion. It is truc that most interpretations of the Charter of
the United Nations will have political significance, great or small. In the
nature of things ilcould not be otherwise." (Certain Expenses of the
United h'ations (Article 17,paragruph 2, of the Ctiarrer), I.C.J. Reports
1962, p. 155.)

317. This close interconneciion between the legal and political aspects is
al1the more inevitable as the Court "lives" in an eminently political environ-
ment. As "the principal judicial organ of the United Nations", ils activity can-
no1 be dissociated from that of the Organization and it is called upon by ils

'"[Tloute action de I'Etaià I'cxtérieurtouchc en fin decomplc 3 sesrelations avec
d'autres Etats, etdu pointde vue du but qu'ellespoursuivent. toutes les actions
exterieures del'Ela1sont ainsitoujours politiques." COUNTER-MEMORIAO LF NICARAGUA 369

vcry ioc:ltion to participate in ihe a~.hic.vcmcntul ihc pi;iIs. uh!,i<iu<lypi~liii-
cal II~nitturc. :lsslgnr.r10 1h:il Orjii~nl~;itl<in:

"lhc Jcl'iriitii~cil'thc si:<tu\ol'tlic C<,urt ;is:Iprinci11:il<,rg:iii.2nd
the priitcip;iI JuJI~I;,~uig~in.a>t\ih:it I>e~scnt~all) ;ipc~Ii1ic;ilrg:in!/;i-
tioii.111~.IJ111tc.lN;III<IIISc.nlnh:~~i/.c>Ih.11intirn;iti<in.il ~idiudic:ii19ii
a funclion which is pcrformed' within the general framewori of the poli-
tical organization of ihc international society, and thai thc Court has
a task that is dircctly relntcd to the pacific settlemcnt of international
disputes and hcnce to the maintenance of intern;itional peace ... I.itiga-
tion is but a phase in the unfolding of a political drama." (Sh. Rosenne,
The Luiv and Pructice of ifheInternational Coirrr, Sijthoff, Leydcn, 1965,
2nd ed., 1985.p. 2: sec also the Court's judgment in the case concerning

United Stores Diplorftiiric und Consi<lar Sluff in Tehrnrt, I.C.J. Reporis
1980. p. 22.)
318. In faci one of thc main characteristics of al1the cases submiited Io the
Court is that they pose lactual problems in a political context, which first

have to be resolved bcforc the judicial function can be performed:
"It is true that. in ordcr Io reply to the questions, the Court will have
to determine certain kicts, hefore being able to assess thcir Icgal signifi-
cance. However, a niixcd question of law and fact is nonctheless a legal
question within thc rneaning of Article 96, paragraph 1,of the Chartcr
and Article 65, pnragraph 1, of the Statute." (We.stern Sahara, I.C.J.

Reports 1975. p. 19;cl'.,als~i,Legril Conseqrrencesfor Slules of the Con-
rinued Presence of Soirth Africu in Namibia. I.C.J. Reports 1971, p. 27;
Aegean Seil Continentrrl Shelf, I.C.J. Reports 1978, p. 13.)
319. Thus. therc arc no disputes that are "by nature" poliiical as opposcd
to oihersthat are "legal" in substance. The general view is chat a dispute is -

or becomes - legal as soon as it is examined by a legal body whose task is Io
form a view based on rules of law. according to the legal arguments invoked
by the parties.
"Thus legal disputes are disputes which reveal. in the considerations
which underlie the contentions, a difference of opinion on a matter

which mav be dccided accordine 10 a rule of law which is indisvutable,
or the ex;stcnce of which at ihéleast may be supportcd by leial argu-
ments." (H. Morgcnthau, op. cir., p. 20.)'
(See also H. Lauterpacht, ïïle Frrnction of Law in the Inter~intiorrulConiniu-
nity, Archon Books, Connecticnt, 1966, pp. 187-189; V. Bruns, "La Cour

permanente de Justice internationale: son organisation et sa compétence",
RCADI, 1937-IV.Vol. 62, p. 611; H. Kelsen, The Law of the United Nnrions.
Stevens & Sons, London. 1951. p. 478; M. Bos. Les cu~rrlitioris(luprocés en
droit iniernntionulpithlic, Bibl. Visseriana, Vol. XIX, 1957,p. 57: R. Higgins,
"Policy Considerütions and the International Iudicial Process". 17 ICLQ.
1968. pp. 58. 74: Ch. Rousscau. Droit internurional prrblic. 1.V. Les rapports
conflicti~els.Sirey. Paris. 1983.p. 254; Sh. Rosenne. op. cil., p. 369: etc.)

'"Les différends juridiquessontdonc des différendq suirévèlent d.anslesconridera-
tionsmotivant Icsaffirmations.une divergence d'opinion sur un point susceptible
d'êtretranchéenvertu d'unc reglede droit incontestableou dontI'exislrncepeut à
toutlemoinsétresoulçnue 31l'aided'arguments juridiques."370 BORDER AND TRANSBORDERARMED ACTIONS

320. It is the submission of a dispute to the Court which renders it "legal"
and which, one might Say. "depoliticizes" il.This is why, as the Permanent
Court stated in 1928:

"[tlhe Court's jurisdiciion depends on the will of the Parties. The Court
is always competent once the latter have accepted ils jurisdiction, since
there is no dispute which States entitled to appear hefore the Court can-
no1 refer to it.l (Righrsof Minoriries Ni Upper Sile,si<(iMinorirySchools),
P.C.I.J.,SeriesA, No. 15, p. 22.)

321. This very open character of the Court's jurisdiciion is alone compa-
tible with the highly comprchensive drafting of Article 36 of the Statute.
which refers to "al1cases" or "al1mattcrs" which parties submit to the Court.
(See Soiirh WcsrAfrico cases, I.C.J. Reports 1962, p. 423 (separate opinion of
Judge Jessup); Milirary ariflParamilirory Acliviries in <in<f/igainsrNicoragira,
I.C.J. Reporrs 1986,p. 289 (dissenting opinion of Judge Schwebel).)
322. Morcover. the Court has never refused to judge a case on the pretext

that it has political :ispects. There would be no point in listing the many such
cases it hasjudged. Lei il suffice to quote the Court's decision in the case con-
cerning Unire</SrarcsBiplomaric and Consi~lurSr<iffitiTelira~i:
"legal dispuies between sovereign States by their very nature are likely

Io occur in political contexts, and often form only one elemeut in a
wider and lonp-standing oo.i.ical disoutç bctween thc States concerned.
Yci nevir ha> tlic vic\i hccn put i,iri\.;irJ t>ch>rc ihtii.hc:.~u\c ;i1cg:iI
rli\puic ~ut~iiiiiicli~ ilic(:.,urii, <~nly,>iic:i\pczi .ip~~liii~.iJliyi~tc.
ihc Couii \hi,iild rleclin~.lu rc'sciluchrr ilic parti;\ ihc Icedl quc\ii$~ns;il
issue between them. Nor can any hasis foi such a viewuof ihe Court's
functions or jiirisdiction be found in the Charter or the Statute of the
Court; if the Court were, contrary to its settled jurisprudence, Io adopt
such a view. it would imoose a far-reachine and unwarranted restriction
upon thc role of ihe CO^ in the peacefuÏsolution of international dis-
putes." (I.C.J. Reports 1980, p. 20.)

323. Thus, the Court would not deviate from ils judicial functions by pro-
nouncing judgment in this case; on the contrary, iiwould deviate [rom its
judicial function by refusing to pronounce judgment. Dy following Hondu-
ras's line of areument on this oint. the Court would be relusine. Io helo the

partie, pc;i~.cfullyresol\c' thcir Ji,piitc and svoidiii,: psrf.,rm:incc of 11, iun~.-
ti<>n ;i;ihc .'princip;il luJici:jl i~rqnof the IlnitcJ N.iti<ins"
321. In (hi> pnriicul;ir arc. Ili~n.liir;iz'r.ircumcnl is :IIIthe niaire round-
less as ~icaragia's Application requests the Court to adjudge and declare:
- that the acts and omissions of Honduras constitute breachcs of its obliga-

tions under international law;
- that Honduras is undcr a duty to cease and to refrain from al1such acts:
and
- that it is under an obligation to make reparations for al1injury caused to
Nicaragua by these breaches.

If the conceot of leeal disoute "bv nature" has anv meanine at all. it is obvi-
ously here: these re~uestséxactly'reflect the diffeknt categtries of "legal dis-
pute" listed in Article 36, paragraph 2, of the Siaiuie of the Court. Le.:

(a) the interpreiation of treaties;
(b) any question oi international law; COUNTER-MEMORIAL OF NICARAGUA 371

(c) the existence of any fact which, if established, would constitute a breach
of international obligation;
(8 the nature or cxtent of the reparation tu be made for the breach of an
international obligation.
325. Regarding the more precise argument based on the political motives

or objectives that Honduras attributcs to Nicaragua, it should be pointed out
that, according to its own settled jurisprudence, the Court does not deal with
the reasons uuderlying a State's decision to submit a particular dispute to the
Court. This oosition was ex~ressed with oarticular claritv in the Advisorv
Opinion conierning the conditions of ~dmirsion of a ~tntétoMembership in
the United Nations (Article 4 of Charter):
"It has nevertheless been contended that the question put miist be
regarded as a political one and that, for this reason, it falls outside the
jurisdiction of the Court...the Court is not concerned with the motives
which may have inspired this request . . ."(I.C.J. Reports 1947-1948,
p. 61; see alsci Competence of the General Assernbly for the Admission
of a State Io the UnitedNar;ons, 1.C.J Reports 1950, p. 61.)

326. This position of principle was reaffirmed in the Opinion of 20 De-
cember 1980. Pursuant to arguments developed during the Assembly of the
WHO prior tu the Court's opinion being sought, the Court was requested "Io
dccline tu reply to the present request by reason of ils allegedly political char-
acter". The Cour1 reolied:

"In none of the written and oral statements submitted tu the Court,on
the otber hand, has this contention been advanced and such a contention
would. in any case, have ru11counter tu the settled jurisprudence of the
Court. Thai jurisprudence cstablishes that if, as in the present case, a
question subniitted in a request is one that otherwise falls within the nor-
mal exercise of its judicial process, the Court has not to deal with the
motives which may have inspired the request (Conditions of Admission
of a State to Membership in the United Nations (Article 4 of Churter),
Advisory Opinion, 1948,1.CJ Reports 1947-1948,pp. 61-62;Competence
of the General Assembly for theAdmission of a Stare to the United Na-
tions, Advisory Opinion, I.C.J. Reporrs1950, pp. 6-7; CertainExpensesof
the United Nations (Article 17, parugraph 2, of the Charter), Advisory
Opinion, I.C.J.Reports 1962, p. 155).Indeed, in situations in which politi-
cal cousiderations are prominent it may be particularly necessary for an
international organization to ohtain an advisory opinion from the Court
as to the legal principles applicable with respect to the matter under
debate, especially when these may include the iutcrpretation of its consti-
tution." (Interpretation of the Agreement of 25 March 1951 hetween the
WHO and Egypt, I.C.J. Reports 1980, p. 87.)

Similarly,in the Northern Cameroonscase, the Court did not uphold the United
Kingdom's arguments about the motives attributed tu the applicant State (cf.
I.C.J. Reports 196.3.pp. 261-265, 281-284).
327. Although the Court does not inquire into the motives underlying an
application, it may be of some intcrest to consider one of the features on
which Honduras relies in order tu denouncc the alleged political motives of
the Government of Nicaragua. According to Honduras, the purported artifi-
ciality of the Application stems principally from the fact that it is indisso-
ciable from the Judgment pronounced by the Court on 27 lune 1986 in the
dispute hetween Nicaragua and the United States (Memorial, pp. 11,13, 33 et372 BORDER AND TRANSBORDER ARMED ACïIONS

seq.. 34 ctc.. srrprn). Honduras reaches this conclusion based on "the short pe-
riod of lime thai has elapsed since the Judgment was pronounced and the Ap-
plication was deposited" (ibid., p. 33. siipra), and on the fact that "a third
State, the United States of America, is also repeaicdly rcferrcd to in the Ap-
plication" (ihicl.,p. 33, siipra).
328. Nicdragua does no1 claim that the two cases are completely indepen-
dent of one anothcr; quitc the contrary. Moreover thc Judgmeni of 27 June

1986clearly establislies a connection. As Honduras reniarks, it contains several
references 10 îacts conccrning the relationship betwccn Honduras and Nica-
ragua (ibicl.,pp. 33. 35 et se</.,srrpra). But, contrary10 Honduras's conclusion.
therc is nothing in;~ppropriate or "artificial" about this connection, and n
fortiori. nothing ihat should induee the Court to declarc the Application in-
admissible.
329. First. ihcrc is no reason why the de fncro and (lejirre considerations,
carefully invesiigated by the Court (see I.C.J. Reporrs 1986.pp. 24etser~..pp. 38
el seq.) and found valid in June 1986.should no longer be valid today. More-
over. it is a basic principle ol international law thai States must respect the
rules thereof. independently of any junsdictional decision.
330. Second, the 1986Judgment as such is not applicable to Honduras; as
noted by Honduras itself. that Judgment is valid only with respect to the

"activities ol the Governmcnt of the United Siatcs in rclation to Nicaragua"
(Memorial, p. 15, sirpra). In accordance with the provisions of Article 59 of
the Statute ni the Court, it "has no binding force except bctween the parties
and in respect ol that particular case".
331. Third, ilis worth noting that in the Militriryun(/ Pr~rrimilitaryActivities
in and agiiinst Nicnri~giio,Jurisdiclion uncl Admissihility, the Court, though
fullyaware of the larger situation in Central America that consiituted the back-
drop of the bilateral dispute submitted to il. in no way relused io cxercise its
jurisdiction (I.C.J. Reportc 1984,pp. 430-431.440-441).
332. The situation is in al1respects similar in the present instance: there is
on the one hand a tensc general situation. and on thc oiher hand. a certain
number of bilateral disputes - either between States ol the rcgion and out-
side States, as was the case with the dispute submitted to the Court by Nicara-
gua in 1984 - or between States of the same region, as in the case of the

present dispute. Let it suflice io Say here that thc Iwo catcgories of dispute
are clearly disiinci (cl. the separate opinions of Judgc Kuda, I.C.J. Reports
1984, p. 457, and Judgc Sette-Camara. I.C.J. Reports 1986, p. 198) and may
not be joined.
333. Along thc samc lincs, Honduras opposes any examination of the merits
of this case becausc it claims the Court is not in a position to express a view on
al1the aspccis of wliat is allegedly a global dispute, both regarding the State
concerned (cf. Mernorial. pp. 20.33, 34. 36-37,39. 48, etc.. s~iprrr)and regarding
the various aspects involved - political. economic, military,etc. (cf. ihid., pp. 27
et seq.. pp. 44 erseq., sirl>ra).It also contends that the Court is noi equipped to
resolve these various problems effectively (ibid., pp. 45, 47-48. sirpra).
334. Ir has said ton much or too little. Contrary to what Honduras implies.
the Court cannot and should not lose interest in the general political. eco-

nomic and social contcxt ol the applications made to it. although this context
is never the actual subject of a dispute. (Cf. Free Zones. Ordcr of 7 June 1932,
P.C.I.J., Series A/B, No. 46, p. 162; Conipetence of rlie ILO, P.C.I.J., Series B,
No. 13,p. 23.) At the same tirne, the existence of a largcr contexi, whatever
its nature may be. is never an obstacle to the Court's expressing ajudgment as
to the meriis of the case submittcd to il. In the case concerning Unired Srares COUNTER-MEMORIA OLF NICARAGUA 373

Diplomatic an11Consirl~rrStaff in Tehrun, the lranian Government drew the
Court's attention to the fact thzrtthe dispute that the United States had sub-
mitted toit was only a marginal and secondary aspect of a larger conflict from
which il could not he dissociated. On two occasions. the Court firmly rejected
this argument:

"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." (I.C.J. Report.?1979,
p. 15; cf. alsoI.C.J. Reports1980,pp. 19-20.)

335. Suhsequently,the United States had occasion to make a similar argu-
ment:

"[tlhe allegalions of the Government of Nicaragua comprise but one of
the complex of interrelated political, social, economic and security mat-
ters that confront the Central American region" (Milif<rry and Para-
military Acrivitiesin and againsrNicaragira,Requestfor the Indication of
ProvisionnlMeasirres,I.C.J. Reports1984, p. 18;Jclrisdiclionand /ldmis-
sihiliry,I.C.J. Reporrs1984, p. 439).

In response. the Court merely referred back to ils Judgment of 24 May 1980,
from which if reprodiiced the most significant extract (see supra). The same
principle applies to the present case parlicularly as, in the case hrought by
Nicaragua against the United States,the Court clearly accepted that "the sub-
ject matter of the dispute" submitted to it also formed "part of wider issues
affecting Central America" (ICJ Reports 1986, p. 22).
336. Of course. if other States consider that their "interest(s) of a leeal

diction nid ~dm'issibiliry,I.C.J. ~>~urf.s1984, p. 431: cf. also p.4%). They
are. moreover, in 21position to do so. sincc, in accordance with the provisions
of Article 42 of the Rules of Court, the Registrar transmitted a copy of the
Application to al1Members of the United Nations and other States entitled
to appear before the Court.
337. Notwithstanding the claim of Honduras that the dispute bronght hefore
the Court would not lend itself to a bilateral solution, which has already been
examined, it is clear that the prcscnt dispute has the characteristics of a "legiil
dispute" within the meaning of Article 36 of the Statute. In accordance with
the famous definition given by the Permanent Court: "A dispute is a dis-

agreement on a point of law or tact. a conflict of legül views or of interests
between two persons." (Mavro,>rmafis Palesfirie Concessions,Preliminary
Ohjecrians, P.C.I.J., SeriesA, Nct. 2, p. II.) Nicaragua's Application lo the
Court of 25 July 1986 concerns a dispute which tallies with that definition in
every possible way; in the Application Nicaragua has listed the categories of
acts which it attributes to Honduras - giving precise examples - along with
the rules of international law with which these acts do not conform. Honduras
has stated that itcontests that these acts occurred, the interpretation of these
acts, and whether they are in breach of the rules of law currently in forcc.
There is thus, quite obviously, a "legal dispute" which the Court is competent
to hear, and the alleged inadmissibility of the Application cannot be sustsined,
since "there is no dispute which States entitled to appear before the Court

cannot refer to il" (Righfs of Minoriries in Upper Sile.siri(Minorify Schools),
P.C.I.J., SeriesA. No. 15, p. 22 prec.). PART V. SUBMISSIONS

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 modifi-
cations of the Honduran declaration dated 20 February 1960,contained in the
"Declaration" dated 22 Mav 1986.are invalid and conseauentlv~~he "reserva-
tionb" in\okccl by ~<iitdurasin il. hlcmori;tl arc'\ritlioui icg;ililfccl
2. Altcrn;ttivcly. in ciire the Couri linrl..1h:irlhc modilic3tions <ifthe lion-
dur;tn "D~clarnti~in"d;itcJ 22 hliiv 1986;ire \.;ilid.wch mi~dificiiiiiinrc~iiiit~it
be invoked as against Nicaragua hécauseon the facis Nicaragua did no1receive
rcasonable notice thereof.
3. Without prejudicc to the forcgoing submissions, the "rcservations" in-

voked by Honduras are no1 applicable in any event in the circumstances of
the present case: thus -
(a) the dispute to ivhich the Application of Nicaragua relates is not the sub-
ject of any agreement by the Parties to resort to other means for the paci-

fiesettlement of disputes; and, in particular, neither the Contadora process
nor the provisions of the Pact of Bogoti constitute the "other means" to
which the pertinent reservation refers;
(b) the disoute to which the Aool..ation of Nicaragua rdlates is no1a disoute
"rci;lling tu f:ict; or sltuslions orlglnnting in 3rillc'd~~lntllilUr :lits01 :I
similnr nature which m;iy :iffc'ctthe tcrriior!. of thc I<cpi~l)licol IlonJu-
r.15siiJ in u.hi<h ilm:iv iind itrc'liinvt)li.cJ rlire<tl\ or indirsctl\'. 2ndin
the alternative, the '.réservlitionW in question do& not passes an exclu-
sively preliminsry character and thercfore the issue of ils application is
postponed for determination at the stage of the merits.

4. The "reservations" invoked by Honduras are no1 applicable in any
event to the provisions of Article XXXl of the Pact of Bogota. which provides
an independent basis of jurisdiction within the framework of Article 36, para-
graph 1, of the Statute of the Court.

5. The application of the provisions of Article XXXl of the pact of Bogoti
is not subject either to the conciliation procedure referred to in Article
XXXll of the Pact, exhaustion of which is a condition of recourse 10 the
Court exclusively within the context of Article XXXII, or to the condition of
an agreement upon an arbitral procedure which relates exclusively 10Article
XXXII.
6. The grounds [ifinadmissihility of the Application allegcd to derive froni
the provisions of Articles II and IV of the Pact of Bogota have no legal basis.
7. All the other grounds of inadmissihility allegcd in the Honduran Me-

morial have no legal basis and mus1be 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 Applica-

tion submitted by the Government of Nicaragua on 28 July 1986. COUNTER-MEMORIA OF NICARAGUA 375

2. The competence of the Court exists: by virtue of the Honduran declara-
lion dated 20 February 1960 accepting the jurisdiction of the Court in con-
formity with the provisions of Article 36, paragraph 2. of the Statute of the
Court: or (in case the declaration of 1960has been validly modified) the Hon-
duran declaration of 1960as rnodified by the declaration dated 22 May 1986.

and the Nicaraguan declaration dsted 24 September 1929; untü*>r by virtue of
the provisions of Articlc XXXl of the Pact of Bogoti and Article 36. para-
graph 1, of the Statute of the Court.
3. nie Application of Nicar;igua is admissible.
C. For these reasons the Covernment of Nicaraeua resoectfullv asks the
<.'ourito dcclarc ihat11h;i\)uri\Jicti<in ,>r.:iltc~rn;iiiibrchcrvi:an\ que;-

ilon which dues noi po\\ess an cxclusivclv prelimin:irv ch;ir:ictcr ior decisicin
at the staee of the merits
D. In-respect of al1 questions of fact referred 10 in the Memorial of
Honduras not expressly considercd in the present Cuirnler-Mcmorinl. the
Government of Nicaragua reserves its position.

This original copy
of the Counier-Memorial
is certified on behalf of
the Government of Nicaragua

(Signe</)Ambassador Carlos ARGÜEl.l.0 G.,
Agent of the Rcpublic of Nicaragua.
22 June 1987. Volume II

ANNEXES TO THE COUNTER-MEMORIAL

OF NICARAGUA

Annex 1

DICTIONARY OF INTERNATIONALRELATIONS TERMS , NITED STATES

DEPARTMEN T F STATE LIBRARY, 1987

Contras: Shortened form of ihe word "countrarevolucionarios" (counter-
rcioluii<in:irics)ihc icrm thc Sandinista rr'gitiiIIINi:iiriiguimes for ihc gucr-
rilla furç's fighiing againsi ihcm'. Thc Qinir:i\ rompricc i<iriiicr incnil>crs uf
ihe Suiiio~isi S:iiii~n;il Gu.irJ. disiideni rirhi-uilornicr Siindinisias. and ihc

Miskito Indian minority; each of these grces operates independently'. The
Contras operate froin bases in Honduras and Costa Rica, and reccivc political
and material support from the United States3. Thçre have bcen rccurrent
armed clashes between Sandinista government troops and the rebels since
March 1982'.

See also: Boland Amendment; Caraballeda Declaralion: CONDECA:
Contadora Croup: Kissin-er Commission; Lima Croup: Linowitz Re~ort:
Reagan d oc tri ni.

'Followingsixmonths ofcivilwar.whichresulted inthe ovenhrow of Presideni Anastasia
Somoza.the Sandinista National Liberalion Front came into oower inJulv 1979.Sce Furrrsi
D. ~~o~hurn,~~s~car:,~oun~de, S,C~C.,c,,,~,.11t,~~~~\t~h~. 1~85, II,&
' Kn,>i,ig'(C'li-1)(I9X3). pp. 323115.3?3Sec .il\<Kich;irJ 1..lillst''Sicarsgu:~',
Fru>ir.iie<lK~~olutii,n".Ci~rrr>~Iili,iIlin1'1~0nii 5-39
'The Reagan Administration has baiked the ~oni& by vanous means. includingjoint
manmuwes by the US with the Honduran Army. fleet exercises off the Nicaragua" coast.
the secret miningof Nicaragua" harbors and miliiarysupplies. In December 1982.however,
the Bolandamendment became law.ierminating USaidta the Contras forthe lollowingtwo
yearr. Details are given inKceringS (CE-5) (1983).pp. 32486-32493.InJanuary 1985Presi-
dent Reagan aniiaunced ihai the United States would boycolt the proceedings al the Inter-
national Court of Justiun Nicaragua's suitalleging US aggressiSeeficooti 17ile(CE-
3) (1985),p.45. OnMay 1,1985.the Reagan Administration imposeda tradeçmh;irgo agziinst
Nicaragua. For a discussion sce thc Economirt. June 29,1985, pp. 75-76.OnAugusl 1.1985,
Congress, arpart of the fiscal 1986furcign aid appropriation, providcd $27millnon-in
lethalaid for the Contras. to bc moniiurrd bythe National SecurityCounciland tidminisiercd
by the CIA. See the W~ïihingiunPo~i.Aug. 4, 1985.p. AS. On June 25, 1986,in respunsr tu
the President's rrqurst, the Houseof Kepr~sentatives authanzed the resumption of USmi-
litarv aid to the Contras after Srntrmher l. 1986.as oa$100fmillion militnrv .non-
miliiaryaid package. Sec Petcr 6sterlund. "Reagan bersistence. Compromwon the Day
for Contra Aid". CItMtiaScienceMuniiur. June 27.1986,~. 36.The Soviet Uniohasheen
the chief arms suoolier to the Sandinista rerime. See Richard L. Millett. "Nicararua's
Frustrated ~evol;don". Curreni tlirtory. ~an.~l986.p. 5.
Keeringk (CE-5) (1983). pp. 32302-32306. ANNEXES TO THE COUNTER-MEMORIAL 377

Annex 2

"CONTRA PRESENCE INHONDURAS" N,EW YORK TIMES,18APRIL 1986

[Nor reproducedj378 BORDER AND TRANSBORDER ARMED ACTIONS

Annex 3

1% l'CR\1k.U ..\NI>Kl!!is CLI~:VFRI:SCF Gl\'liS IIYPKl~S1vl:r:l'JOSG. ,\Y.os,\,
TI'~,L'~:I(~,\I.~,,\\I)I:>,\ III(, \'IIOI:\si) UAI)IIIr\\t~:~~c,\ .u DI-.(.L>ILII:K
l'Jhl>.I'I~INI'CIr:I.'HI.SII I~I~CII\IIII:lYhh

Azconn Reviews Nicorngrin/ncrir.sion.US Aid

[Interview with President JoséAzcona by David Romero; date and place
not given - recorded]

[Text] [Azconal The truth is that there is no war. What we experienced was
an invasion by Nicaragua. The Nicaraguans crossed into Honduras through El
Espanol Valley, Maquingales, Las Mieles, in that area. and established posi-
tions. They even dislodged small Honduran detachments stationed in that area.
Thishappened 8to IOdays ago. The intensity of this operation was greater than
the one that occurred in March.
In the face of this situation the Honduran Foreign Ministry sent protest
notes to the Nicaraguan Foreign Ministry. These protest notes went unheard.
On Saturday morning, 1 contacted the President of Nicaragua to ask him to

withdraw the Nicaraguan troops from Honduran tcrritory and said that if the
witbdrawal was not ordcred we would be iorced to eject thcm.
On Thursday, a confrontation was reported in the area of Las Mieles. At
that lime. three Honduran soldiers were wounded and two others were
reported missing. One of the soldiers has been found, but the other one is still
in the hands of the Sandinists. in thehandsofthe EPS. The President of Nica-
ragua denied the charge that there were Nicaraguan troops in the area of Las
Mieles, but he did admit that the troops could be to the east of that area. In
the lace of this denial, we decided that something had to be done to force
them to respect our territory. and that is why on Saturday aiternoon several
planes attacked several positions in that area.

Since we received no information regarding the Nicaraguan withdrawal
from our territory, on Sunday morning there was another attack, this time
stronger and better organized than the Saturday attack. We also began the
operationsto transfer infantry troops to the area. This was done with helicop-
ters.
[Romero] Mr. President, the Nicaraguan Government has accused your
Government of bombing positions within Nicaragua. Their tclevision station

showed clips showing thit~icaraguan territory wis attacked
Ac: S. Th. . . ni) .. ur. M'ch;ivcthe di<posiii\inIJispo\isii>n)
#~ flcnying ih;ii bcc;iiiitis no1truc. Wr. hiive gonc. . 1ch;injic.siho~glit] have
hecn ihc obicçl ol ~rii\oi;iiion\ for .evcr;il d:ivshv Ihc Nicarlirulin forcr.~.In ih.<i
arc:, ihere ;tre ncsi; of ~riiliIi:ihzivr3 rn;igcuf 21 )<nianiihe). .ire\CI3 or 3
km from the horder Sincc ~hisariillery has a 21-km riingc :inJ i,Ii,c:ited 3 o1
km from the border. it means that they can hit tareets 16km into our temtow.

That is a provocation. They should remove al1that artillery from that area; mo;e
it back to a distance that ifthey fire a shell it will not cross the border.
A few days ago ;icistern truck was hit by one of their grenades and de-
stroyed. This happened in the area between Cifuentes and Trojes. We have ANNEXES TO THECOUNTER-MEMORIAL 379

more than 1,000 Honduran families who have been displaced because of this
occupation, and we will not allow our territory to be occupied by anyone. We
do not care if Nicaragua has 300.000 soldiers or whether they use their whole
budget to arm them. This is psycliotic attitude, it is madness. We are not going
to usc al1our budget to arm the country, but with what we have we will repel
any aggression that we may experience, and, the Army has the constitutional
duty to protect Our territorial integrity. The Army will do its duty at al1costs.
[Romero] The Nicaraguan Gi~vernment claims their military mohilization
on their side of the border is due to the fact that Honduras is lending Hondu-
ran territory for attacks by the Nicaraguan countcrrcvolutionaries.

[Azcona] We are no1 going to launch any attack on Nicaragua. WC have
said this over and over again. The Nicaraguan problem, the problem of the
counterrevolutioniiries and that of the refugees, which we are enduring, is to
be blamed on the Sandinist Gov<:rnment. Let them see how they resolve their
domestic affairs and leave us alone. If the Sandinist Government were a
democratic government like the Honduran Government, there would bc no
counterrevolutionaries and we would no1 have 80,000 Nicaraguan refugees
here who are creating great problems for us in addition to the problems we
already have.
[Romero] Mr. President, Nicaragua has proposed that an international
UN commission be sent to supei-vise the lengthy Nicaraguan-Honduran bor-
der. 1syour Government prepared to accept that proposal?

[Azcona] What wc want is for Nicaragua to comply with the commitment
itmade with the OAS in 1979so that there may be peace in Nicaragua and we
may al1live in peace. Here in Honduras we live in total peace. We have rio
political prisoners, we havc no political exiles, there are no counterrev .. .
lword not finished. chanees thooehtl there are no armed Hondurans attack-

ries, when a country has so many refugees in neighbouring countries, there is
something wrong in that country. When something is wroiig in a country, then
the first people to be blamed arc: those who are leading that country, in this
case, the Sandinist Front, which is the party, the political group, in the govern-
ment.

[Romero] Your Government's rcfusal to accept UN or OAS supervision
on the border could be interpreted as an effort to hide something from the
international community or from these very important organizations that watch
for peace in the world.
[Azcona] We are open to everyone here. Journalists come here. Honduran
papers have even published communiqués from the Sandinist government.
1 would like to see if Nicaragua would allow the publication of Honduran
Government comniuniaués. 1don't think sa. This is the difference between a
democratic government, a country that lives in democracy, and a country that
lives in oppression, under a dictatorial government.

[Romero] Mr. President, is there the possibility, or are diplomatic actions
being adopted alongside the military actions of recent days, to consolidate
peace or 2 least to avoid more clashes in this area?
[Azcona] We don't want war with anyone. We are no1 a warlike country.
We are a peaceful country. Whnt we want is respect toward our territorial
integrity and for the Nicaraguans of the EPS who are on our side of the bor-380 BORCIERAND TRANSBORDER ARMED ACTIONS

der to leave inimediately, because otherwise we will have to make an effort.
regardless of how great il may be. and expel them.
[Romcro] Docs this mean that there is the possibility that there will be
new clashes to cxpel these elements that the Hondurün Government says are

still in Nicaraguan [:is heardl territory?
[Azcona] Our trilops are advancing already. Our infantry troops have
been mohilized to clcan up that area. If they do not withdraw, there will be
confrontations within our territory. The Honduran soldiers have received
strict orders lo stay within Our border and no1 step a singlc inch into Nicara-
guan territory. However. within our territory WC must protect our rights.

[Romero] Could wc know about mobilization capabilitics or for bow long
this search bv the Honduran Armv could last?
lAzc011311hcIic\.c th:~t 111~31C:I 15a difl~iull imc. .Muhilizatii,nr lia\tchc
c.irrir.il ijui hy hr.licoptcr. On ihc Nic;~r:t~iiJt itis dificrcnt hr.c;iujr.ihcrr.
;arc ru:iJs111;irmch lh;ii ;xrc.:WC113vcIo do ilhv :ur. b\ h~licuvI~r.:andtliir
takes time. WCcxpcct that the area will have bien sea;ched in 2 or 3 days.

Let's hope that by then al1 Nicaraguans who are inside will be out. because
otherwise there will necessarily be confrontations, and they would take place
inside our territory. This would be very rîgrcttable. 1 ask the Nicaraguan
Government. as 1 asked President Ortega on Saturday, to pull out al1 the
armed men thcy have sent inside our country.
[Romcro] Wcrc therï Honduran Army casualtics this past wcckcnd?

[Azcona] No, because this was a confrontation with the Honduran Air
Force and, fortunately, in spite of heavy anti-aircraft and missile fire. none of
our planes was hit, and they al1returned to their bases safely.
[Romero] Mr. President: You - the Honduran Government - virtually

said that the Contadora Group [efforts] collapsed because of an apparent
lack of cood will on the var1 of the two Governments - the Honduran and
the Niciraguan ~overnhents - to resolve the conflict through peaceful
means. Can that view and the recent clashes be considered the beginning of a
prolonged war in Central America?
[Azcona] No. The Contadora Group [efforts] failcd because at the begin-
ning the group lacked the strength to make Nicaragua sign the document. We

were willing t<isign it on various occasions.
The Contadora Group was too soft, conciliatory and lcnicnt with the Nicara-
guan Govcrnment. This prevented the signing of the document, which several
times we were ready to sign.The Contadora Group lackcd thc determination to
pressure [Nicaragua]. i believe they acted in very good faith and selflessly. We
have acknowledged this and we appreciate il. However, a greater determina-
tion to pressure the Nicaraguan Government into signing the document and
abiding by ils provisions was lacking. Thus, a good opportunity to resolve this
oroblem was lost.

[Romero] The Nicaraguan Government has accused your Government -
actually. the US Government -of intervening in this affair because the US
Government assisted the Honduran Armed ~oÏces troop transport operation.
[Azcona] In that case we could say that the Soviet Government is inter-
vening also, bccause Nicaragua does no1 manufacture arms. and Nicaragua is

saturated with wcapons. Nicaragua has 10,20, 30, or 50 limes more weapons
than Honduras. Thcrcfore, the Soviet Union is also intcrvening in Central
Americü; and to a greater extent than the United States is. ANNEXES TO THE COUNI'ER-LMEMORIAL 381

We reiect that accusation becausc Honduras is a sovereien countrv that rc-
quested assistanceto move its troops to that area becausewLdo not have trans-
port helicopters. And we will request that assistanceas many times as is neces-
&y, whether a third country likes it or not. The security of our country and

people is our concern.
We know that Nicaragua is mounting a large-scale campaign to discredit thc
Honduran Government. Howevcr. 1 want Io tell the Nicaraguan Govcrnment
and the world that Honduras doesno1havc moncy to spendon publicity. Hondu-
ras's money gocs into health and ïducation, and Io fced ils population. Thank

God, and despite al1 the problciiis wc have, Honduras is no1 facing the pro-
blems that people in Nicaragua are kicing. This is becausewc are no1spcnding
thc money we uecd for our pcoplc's basic needs on publicity or arms.

[Romero] What was the cos1of the US assistance to Honduras'?
[Azcona] There was no cost. A military assistance treaty was signed in

1954.Based on this we requestcd the assistance becausc we did not have helj-
copters. lf we had transport helicopters wç a,ould have used our oivn. In!-
tially, we thought we would no1 need assistance because we believcd that our
aircraft could transport the troops to nearby strips, from where we could
move them on small helicopters. However. we realized this could not be

done. and we requested assistancc exclusivcly for transportation.
[Romcro] In convoking the 1!)54treaty and in the event of the outbrcak of
wiir - though we hope this will no1happen - can Honduras continue 10con-

voke that treaty that providcs US military ;~ssistance?
lAzconal Our dutv as orcsident of Honduras and the constitutional dutv of
.~~ . ,
thc ~rnicd'k<>rrc\ ~h 18cnhur~ III~I III< I~;BII,U~:Irrltnr! ~5rcsp~.ctcd \\'c'\~ill
ni.ikc 3urc it i,r:q~~,ct~din ~i i~r :I.ai:c.iii 'I'h~'r~.i.)r~.,th^i~np<~rl.~ltlth15g
ih.,t. i~is~e;~JII III,IUIIII~~~ID<IIZII<i~c'~tn>lIIt~~iJ.lr,~\.thr. 1-I'S ~~11J1crIII~
leave Our country. If theido n;t. se wiÏl bc obliged to cxpel them.

[Romero] International dispilches have reported that there is an agrec-
ment between the Honduran and US Govcrnments to expel the corlrrns from
Honduran territory.

[Azcona] We have said time and again that the contra phenomenon is no1
the Hondurans' fault. The corlrro phenomenon is the fault of a govcrnment
that violates Nicaraguan rights. 1 told Ortcga this to his face in Esquipulas.
1have said this to him and to al1of them many times: Open political options

to al1 sectors of Nicaraeuan societv and this will case the uressure. When a
gui'crnmcnt duc* nui xllou i~ihr.rs IO c\eriisr. piiivcr tir aspireIO porrcr. vin,-
lei11situ;~iii~nCIISUC \\'II) JOII'«..,hil~~,~1<11cnc~ cnHonduraç 'Ijr.~.;iusr.ihc
tl,indur.in i>rr.\iilintus> clcstr.J ior :I 4-vc:ir Icrm x1tc.r wliich )IL'niIl lurn
ovcr powe;to whoever thc Honduran pe~plc clect, no mattcr what party that

person is from. There is no pressure hecause al1 those who have political
aspirations and belicvç that thcy havc the people's support have the oppor-
tunity to vie for power.

[Komero] 1s it true that - as it was announced by the White House. in
Washineton an aereemcnt betwccn vour Government and the US Govcrn-
"i~~it<:,.th c~pcCth~ ,W~II,,~.~. W~IC;,CCc.un~xtcci 1,)~UIIII,~~Jt~.ntltl:,rn~cd
incn. ;iiiJ ir.in5ir.r tlicm t:IIIuitJctcrniincJ plirc"

[Azcona] We have said - and we maintain - that the counterrevolutiona-
ries must fight for tlieir country's freedom in Nicaragua. Those problems
must be resolved between Nic;traguans. However. we have made no such ANNEXES 70 'THECOUNTER-MEMORIAL 383

[Azcona] 1bclieve that we wciuld be forced to resort tu that aid to defend
our territory, and inside Honduras, no1 to invade Nicaragua. 1have repeat-
edly stated that Honduras does no1 wish tu invade Nicaragua nor will il lend
its territory to the troops of any foreign power tu (?invade) Nicaragua.

However, that is no1 the same as having to defend ourselves. If we are at-
tacked inside our territory, we will accept the hclp of anyone offering us help.
Of course, we have an agreement with the United States. We can count on
that aid at any lime.

[Romero] One more question. MI. President: Since the beginning, your
Government has been involved in serious international charges. Specifically,
it has been said that our territory is being used to supply with arms the insur-
gent Nicaraguan groups that are allegedly in Honduran territory. This has

given a very weak international image to your Government.
[Azcona] No, that is not true. Democratic governments throughout the
world have already understood our position. That is completely false. What
Radio Moscow and Radio Havana report or what stations managed by the

international left report is one thing, but the truth is that reality cannot be
concealed for long.
Nicaragua is a country where al1 freedoms and rights are being violated;
where the entirc economy is being wasted in arms; where thcy have 300,000
men lin the Armcd Forcesl. On the other side is Honduras, a countrv where

democracy is respected; where citizens rights are being respected, wbere
there are no political prisoners, no political exiles, where we do not have even
one person as a rcfugee in another country; where nobody is persecuted for
nolitical ~-~sons. Our Armcd F~ ~-s~are orofessional. but reduced in size. We
Siend a small percentage of our budget io maintain'our Armed Forces. The
world understands this, and the situation has been changing quickly.

Of course, we cannot expect understanding from soiiaiist countries, but
we do expect understanding from democratic countries. and we are indeed
receiving their support and they will continue to support us. 1am referring to
Japan, the FRG, Italy. Spain, Francc, England, thc Netherlands and the
-~~ndi~av~ ~~countri~ ~ ~

Of course, as always, the intensc propaganda carried out by the Sandinist
régime has to reav somç dividerids. However, as the president of Honduras,
1 Eannot irresnon~iblv soend the Honduran neoole's monev in waeine an inter-
national camiaign to vkce our truths. 1an; su'bjecttu a b~dget~~~roved by
the National Congress in which you can see a small budget for the Foreign
Ministry. We do not have funds to carry out publicity campaigns throughout

the world to explain OUI reality.
[Romero] The national and international press h;is been complaining be-
cause the Honduran Government, unlike Nicaragua, has no1 allowed them to

reach the site of the conflict to gel an on-site report of what really happened
at the border area.
[Azcona] Well, our Armed Forces offered to transport newsmen to that

area. Of course, what they will encounter is a rural area, because we do not
have large towns there. However, we can take them to the towns that have
been looted by the EPS.

[Romero] In view of this delicate situation that we are experiencing in the
Central American area, specilically in these two brother countries. what
would be your message, Mr. Prcsident?
[Azcona] Well, the Sandinist government is the one experiencing a deli-354 BORDERAND TRANSBORDERARMED ACTIONS

cale situation as a result of its attempt to continue oppressing its people and
consolidating itself in power- that is. trying to establish absolute power. We
have no interna1 problems. The people here realize perfectly well that Hon-
duras has been attacked and the Honduran Government and Armed Forces
have acted in defense of national interests and in kccping with the Republic's
Constitution.
Therefore. we do not have nroblems. We do have nroblems. but not ex-
actly that kind of prciblem. ~chave other problcms: ~e have problems with
health. education and housing. Those are the problems wc are trying to resolve.

Azcona DiscussesIncursion wirh News Meclirr

[News conference given by President JoséAzcona in the Room of Mirrors
of the Presidential House - live]
[Text] [Moderator] President José Azcona will now hold a news confer-
ence. 1 want 10 ask you to identify your organization and yourselves.

[Azcona] 1will gladly reply 10your questions regarding the situation with
our sister Republic of Nicaragua in the border area. I want you to ask specific
questions. 1hope that you will publish my replies objectively.
(Reporter] (Question indistinct]

[Azcona] Right alter our aerial attacks on EPS positions on our side of the
border, WC learned tliat thcy bcgan to retreat toward their country. As for the
help being offercd by the Government of President [José]Napoléon Duarte,
1 wish to Say tliat Honduras is immensely grateful and [word indistinct] with
the solidarity shown by the Salvadoran Government.
[Reporter] [Question indistinct]

[Azcona] The Honduran Army has no1sustained cüsualties cxcept for one
person missing since las1week when three individuals and three soldiers were
wounded. Two soldiers disappeared: one of them was found Sunday. 1think it
was Sunday. The other one. 1believe. is still in the hands of the enemy. No
casualties have becn rcported yet.

[Reporter] Ilid Sandinists enter Honduran tcrritory?
[Azcona] [Words indistinct] 7 or 8 km. There is an area along the border
where the border curvcs sharply. Through various points in that area, they
entered 3 to 4 km into Honduran territory. Farther awüy to the west, there
were places whçre they entered approximately 8 km insidc our territory.

[Reporter] The Sandinists claim that Honduras attacked three sites inside
Nicaraguan territory. What is your reply to this?
[Azcona] WCbombed positions occupied by EPS forces inside Honduras.
1 also wish to Say that there are very heavy deployments going on near the
Honduran border arca. including artillery and tanks that could have been

very easy targets for Our Air Force.
However, WC did iiot attack them although they - with the mere presence
of long-range artillery near the border area - are already threatening Our
territory [second break in reception] inside Nicaraguan tcrritory, although 1
do think that it prompted a Honduran protest, because they maintain artillery
with a range of over 20 km at a location 6 km from our border. This means
that whcn fired they would have a reach of 16 km [as heard] inside Our terri-
tory. ANNEXES TO THE COUNTER-MEMORIAL 385

[Reporter] Coiild we say that there arc two armies concentrated there
facing each othcr and that something could happen?

[Azcona] No, there is no army there, because we only transported two
battalions . . .IAzcona corrects himselfl that is one battalion. Actuallv. the
lilr~~furcc nc:ir thc hordcr i$ii1:i.J~up of 711.tit10ic;iragu:in meii.\\'ch:iw Jc-
plo!.J ~ni;illcaiiitinLcni\ Iriini hili~olitcr\\'c l>clic\:tIi;i\r: aiIl not iic~ii,i
derilov othcr tr«o~shecausc the Sandinist eovernmcnt mus1realize that should
thére.he an aggicssion against ~ondura; the entirï Honduran people will
stand behind their government and Armed Forces. as they have expressed in

telegrams that we are receiving from various sectors: the transportation sector,
political parties. pcasant. labor and business sectors. municipal organizations
and so on.
[Reporter] [Words indistinct] regarding this conflict before the United
Nations and other organizations?

[Azcona] With regard to the United Nations. it ;ippears that the Nicara-
guan Government has proposed filing a report beforc the UN Security Coun-
cil. We are ready to do this. Our ambassador at the United Nations, Mr.
Martinez Osorio, alrcady has al1the information nccessary to answer any ac-
cusation that may hc made at that Organization.

Reeardine cmbassics. al1of our ambassadors have alreadv received instruc-
ri,!ritiircp.irt ihc triith ,,l the \itu.<ti\Vr. >p<,l<c i>uriurr,ign niiiiiir,r ah.)
\\:i,in ttic Kcthcrlaiid, ycstcrd.iv.,O hc c:in iii:ikcc<ini;ict;uiih v;iri<iuspii'crn-
nicilis. ri:iri~cul;irlvthcise oi tlie I.ti:. tu hricl ihcni on the ritu:iri\\'c arc
doing this so that'these governments are not targets of Sandinist government
misinformation.

[Moderator] Julio Armando Valdez of HRN [Voz de Honduras Network]
has a question.
[Valdez] [Words indistinct] do you have confidence in Contadora. the
United Nations. and the OAS?

[Azcona] Ycs. but WC must not play with words. No one has spoken about
a hunger march. It was said that displaccd people are coming to Tegucigalpa.
WCwill help thcin hccause it is the Government's duty to do so. We will also
request help from abroad, particularly [rom the US Government, ta help us
handle that situation. Howcver. it will not necessarily bc a hunger march. If

that happens, it will only confirin what we have said: that the area was occu-
pied by Sandinist forces. The people coming to Tegucigalpa will be our hest
evidence of that.
[Reporter] What kind of relations has your Government established [words
indistinct] to resolve this prohlem?

[Azcona] The Honduran Government has ;i reciprocal military assistance
agreement, signed in 1954.still in effect. Several protocols have heen added
to it that deal with improvements of airports, the treatmcnt ofUS technicians
in Honduras, and other things. Three of four protocols were signed. They
were approved by the National Congress and the US Congress, and they arc
in effect. Thereforc, there is nci need for new agreements. There are docu-
ments signed by hoth parties in which the United States has pledged to help

us in the event of an aggrcssion by any country ruled hy a communist régime.
[Reporter] Speaking of agreements with the United States: 1sthere any
understanding with the United States that will prcvent. in the event of a BORDER AND TRANSBORDER ARMED ACTIONS
386

cunrro defeat, the conrrns from being trapped in Honduras, thus constituting
a greater burden for your country?
[Azcona] We have discussed this with the United States. Howcver, ils offi-
cials have said that thcre is no need Io think about this because the counter-
revolutionaries who go into Nicaragua will stay there. However. it has been
one of our concerns and we have told the United States about il.

[Reporter] Are you exerting pressure for [words indistinct] there?
[A~conn] No. WC are not exerting pressure. We have said over and over
that the counterrevolutionaries' raison d'êtreis io fight for the liberation of
Nicaragua in Nicaral:uii. That is Our desirc: thst they be in Nicaragua. The

counterrevolutionary forces were established for that purpose.
[Moderator] You are smiling a lot. Stein [not further identified]. 1want to
ask you to please give al1the members of the press an opportunity [words in-
distinct].

.Rco.rierl .Q.estion indistinct1
[Azcona] We believc that there were approximately 2.500 Sandinists inside
Honduran territory on Friday and Saturday. We presume that there are fewer
of ihem now. We will conti&c to bomb the oosiiions thev arc occuovine. We..
will also use our forces, our Army. Io expel thcm from thécountry.

[Reporter] [Question indistinct]
[Azcona] 1 do not have exact information on that at this lime. 1 believe
there are still some iroops there.

[Moderator] Roy Arthur of Ln Prensa newspaper has a question.
[Arthur] Mr. Presidcni, has the National Security Council, over which you
preside, already determined the role of the Nicaraguan rebels, the contras in
thcsc conflicts:'

[A-~cona]We have analysed this problcm. However. the main point is that
Our tcrritory was occupied hy forces of anoiher country, without Honduras's
permission. and the forces had to be removcd. Our Constitulion esiablishes
that Our Armed Forces have to protect the national territory, and this was the
point. that those forces had to get out of Honduras. This is why I called Nica-
raguan President Ortega on Saturday morning and told him that the Nicara-
guan troops had ta be taken out of Honduras. Otherwise, there would be prob-
lems because we were going ta fulfil Our duiy. The Honduran peoplc were
demanding that the Governrnent not allow the prcsence of Nicaraguan forces
in Honduras.

[Moderator] David Romero lrom Radio America will ask a quesiion.
IRomerol Mr. Prcsident. the current situation is aooro~riate to eet the

are willin~ to leave Honduras

[Azcona] Thcre are iwo differcnt things: One is that the conrrns have been
going in and out of Honduras and Nicaragua. They have assembled to oust a
goveinment. Another is an invasion by a government's regular forces Io oc-
cuo.,ter~ ~ ~v and oositions insid~ ~he territorv of another formallv-consti-
tuted govern;nent. 'khose are two somewhat ditferent things.
The Nicaraguan Government does not have one valid aryumeni Io use -
hecause there are counterrevolutionaries, or anything else come and oc- ANNEXES TO THE COUNTER-MEMORIAL 387

be blamed.
If the Nicaraguan Government were democratic and fulfilled its pledge to
the OAS; if it gave the Nicaraguan people a possibility or hope of solving
their problems through political or peaceful means, 1believc that there would
not bc counterrevolutionaries. Also. there ~r~ no Honduran Armed F~ ~ ~ ~n
:in!. n~.iglil~ouring~.iiuntr! rryink:ri>ti~pplc0i:ii #uvr,rnnicrir. \\'c .Io niii li.ivi.

rcrugcc~ 8)rp~~Iiii~:iplrlsmcr>. l'l~cru!~~rc ,V n~uci l<k>k ior the \durcc of the
nri~hlcni.'lïic nr<~hlcnihicni\ Irtm tlic Iîck .)iirccrl,>riiIIISic;ir.~~u.~, . \sItnnii
'asthat situati8n continues in Nicaragua. it is very likely that ihere will be
counterrevolutionaries inside or outside Nicaragua, polirical prisonen, and
refugees leaving Nicaragua. Thal is the problem. Solving the problem is exclu-
sivcly up to the Sandinist government.

[Moderator] [Name indistinct] nrwspaper El TiPmpo.
[Reporter] [Words indistinct] the lrangate scanda1 in Washington could

weaken US policy in Central America, to the extent that Honduras may be
lei1 alone with the conlra problem?
[Azcona] We are not alone with that problem. We are not part of that

problem. 1insist time and again that Nicaragua's problem is not Honduras's.
This is the Nicaraguan's problcm. Regarding the sale of weapons to lran
through Israel, 1do not think that it will have a negativc impact on this matter
involving Nicaragua.
It is in the interest of the United States that lran not fall under the USSR
sphere of influence. Moreover, it is also in the interest of the United States
that penetratiori <ifthe Soviet bloc in America does not continue.

[Reporter] You said that this could have an impact in terms of US support
for the contras and that at any given timc it could also have an impact on
Honduras.

I.-\lcon;il IJi> no1\cc Iitihihi; ~oiildh.,\c .IIiiiip.icliiiiIl~iniliir;~~\* III~IJ
\,<ru.lliinJurci\ rl<re\ iit~lha\.^d<~nicsticpronlcm\. WCCIC n<,inccd . lcl~:~ndc\
thoueh.l 1.o not see how it could have an imDac1.If the contras are elihinatëd.
Hi>ndur.isnill nciihc ihc onl? in:!iiiritaiwtcr Ihc coii\cquvnc~.\. II \\il1hti'c ;in
inipzicton T.1S;ils;iil~,r.Ciu.iiciii.sl.~\.Ichic,i aiid ullim:iic.l!iiiiilic Ci~iicilSiaic,
nnil C'i~\t.iI<i<.t ,ju,~,llIi uilliiiitli:,\c :tn iiiin:icl.ml\ on Ili,nJur:i\. M'cd., iioi

have any direct problem with the Sandinist govern&ent. WCdo not have any
problems, directly or bilaterally. Thcre is a problem in the region caused by the
alignment of one country in the area with thc Soviet bloc and the ensuing US
reaction which does not accept that situation.

[Moderator] Here is reportei- Teodoro Diaz. 1ask you not to monopolize
the news confcrence and give your colleagues lime, too, because the news
conference will elid soon.
[Diaz]Mr. President, why does your Government not accept that a special
UN force watch the border ta avoid more conflicts?

[Azcona] A special UN force . . we accept surveillance in the area. but we
are not going to fiill into a Sandiiiist Government trap because what they want
is Io have a force take care of their backs. That iswhat they want, in addition to

bilateral treaties with Costa Rica and Honduras.They want a security helt, and
in this way thcy can advancc on and impose totalitarianism in Nicaragua. We
mus1 consider al1 these things. We are open, there are press represeiitatives388 BORDER AND TRANSBORDER ARMED ACTIONS

from al1over the world here who can visit the area, and we are going io take
them there. However, of course we are no1 going to fall in10 prepared traps.
either. What Nicaragua wants - and perhaps thai was the main objective ofthe
invasion against Honduras - is to have a force corne onio the sccne, and then
everything will bc just fine, the area will be neutralizcd, and they [not further
identified] will be freeo do whatever they want.
The important thing hcre is that the OAS should makc Nicaragua comply
with the commitmenis il acquired in 1979,in the sense that Nicaragua woiild
have a system bascd <ina mixed economy, ideological pluralism, press freedom.
religious freedom,freedom of association, in sum. al1the freedoms to which al1
the oeooles of the world arc entitled.
li thé Nicaraguan Government really wanted to comply with those com-
mitments, it has an o~~ortunity al the beeinnineof the year whcn six aolitical
oarties reoresentine ihe civilian oooositi6n in Nicaraeua made a cleai orooo-
;al to the'~andinisïGovernment.'So, if they were rëally sincerc, the; had a
good chance thcn io acccpt that initiative. It is exactly the same as when they
have been asked to sign the Contadora Document. They have refused to sign
il on two or three occasions. When they thought that pcrhaps it would be
good for them. or maybe because the other couniries were opposed to il. they
hurriedly said they would sign il. However, the document \vas ready to be
signed on threc occasions and they refused.

[Moderaior] Ralzel castel la no^o^f Radio Tegucigalpa.
[Castellanos] Mr. President, what will your Govcrnmcnt do since Nicara-
guan stations are constantly saying that Honduran troops, led by the United
States, bomhed a Nicaraguan town?

[Azcona] We have repeated this over and over. What is important is that
Nicaragua docs not allow anything to be said against ihe Nicaraguan Govern-
ment. which is an ahsolutist and totalitarian governmcnt. Flowcver. here in
Honduras. the media is ready to publish reports from Nicaragua. We will see if
they - through fkrrric(i~lir El Nuevo Diarfo - will publish Our communi-
quéswith the protcsts that the Honduran Foreign Minisiry has filed heforethe
Nicaraguan Foreign Ministry. If they do not allow this. we will not permit the
publication of hulletiiis issued by the Nicaraguan Govcrnment. either. We are
at a compleie toial disadvantage with them. as no reporter in Nicaragua dares
to say anything againsi the Sandinist Government or anything thai will contra-
dict Nicaragua's posiiion. However, bccause we livc in ;Idcmo-cracy hcre,
everyone is free to express himself. Neverthelcss, we should alsotry to be more
patriotic and less inclincd to help the enemy.

[Reporter] [Words indistinct] expecting a Nicaraguan countcrattack after
the Honduran Air Force bombings?
[Azcona] I do no1 believe that il will take place because the only thing we
did was exercisc Our rights. If il did take place. we will bc prepared to handle
the situation by rcqiicsting help from the United States and other friendly
countries.
[Moderator] Let us allow [words indistinct] from Radio America to ask a
question and then [words indistinct] from HRN [Voz de Honduras Network]
to ask the last question.

[Reporter] Daniel Ortega said that he would no1 respect the border
because in his opinion you had [words indistinci] aboui 80 territorial viola-
tions. It seems ihat they want a permanent prcsencc in this area. Have you
declared thisarea an open war zone with the EPS? ANNEXES TO 'THECOUNTER-MEMORIAL 389

gua. ~iwever, the time caméwhen this could not continue.This is why those
positions were bombed. Should they enter the territory again thcy will con-
tinue to be bombed or repelled with othcr types of attack. Ortega said that
this was a no-man's-land and that is why the EPS entered that territciry. All
right. let him enter again. However, he should not complain when his units

are bombed and Nicaraguan soldiers are killed.
[Reporter] Can the Honduras-Nicaragua mixed commission, the OAS, or
any international organization keep watch on this area to prevent a conflict?

[Azcona] (?Such a measure) would mean deploying 12.000 or 15,000 UN
soldiers. 1 doubt that any one country has enough money for this. We seek
something dilferent. We seek to have a commission, formed by UN niember
countrics and frieiidly to Nicaragua, come to either condemn or support the
Sandinist régime.
We are not goiiig to fall into;itrap. If we knew that this would really help
bring peace in Central America . . In fact, we already asked for this at the
OAS in May wheu we visited the United States. We went to the OAS and
delivered a speech asking the OAS to resume authority in Central America
and demand that the Sandinist régime fulfilits 1979plcdge. This pledge was the
final blow to dictator Anastüsio Somoza and nermitted the Sandinists to come
to power. Had it not been for this pledge, it Gould have taken the Sandinists a
long time to overthrow Somoza and who knows whether they would have suc-
ceeaed at all. Onnosition aeainst the United States is beine voiced now. but we
should keep in 2nd that tYheJuiita of ~ational ~econstGction was p;oposed
bv two US ambassadors, Mr. White and Mr. Pezullo. Much has already been

said about the United States and continues to be said. The truth is. however.
that the OAS and the US Government gave the Sandinists the finai push that
led to the revolution's success on the condition that they ahide by their OAS
commitments. This is something which they have not done.
(Reporter] [Words indistinct]

[Azcona] No. 1don't think there is going to be a war with Nicaragua. 1do
no1think at al1that there will be a war with Nicaragua. You foreign newsmen
can clearly see th;it Honduras is no1 in a state of war or anything like that.
Thcre is calm. All activities are being carried out as usual. Ttis true that some
actions have occurred al the border. We are, however, trying to solve the
problem.
[Rcporter] Mr. President, excuse me. (?will you) take your struggle inside
Nicaragua?

(Azcona] It will dcpcnd on the Nicaraguan people's response. No struggle
can be excused without the people's support. If the Nicaraguan people back
the counterrevolutionaries, and their policy established whcrcver they pass in
Nicaragua proves to bc good fi11the people, as we believe it will be, the
contras can succeed.

rights as meddling in Managua domestic affairs.
[Azcona] No. We have not meddled. We are a member of the OAS. We
have also sufrered the effects of this Nicaraguan systcm. Therefore, we are390 BORDER AND TRANSBORDER ARMED AmIONS

entitlcd to protest. If the Nicaraguans build a wall al the border and it pre-
vents Nicaraguan refugees from entering Honduras, and there is no possi-
bility of any counterrevolutionaries or subversives entering our country, we
would bc al1the happier. But as long as we suffer the effects of this govern-
ment. we are fully eiititled to demand Nicaragua's domestic democratization

anywhcre we speak.
IModcratorl The last auestion will be asked bv Julio Armando Pacheca. ANNEXES TOTHECOUNTER-MEMORIAL

Annex 4

"PRESIDENTSAYSHE HASN'TEXPELLEDCONTRAS".UNITEDPRESSINTER-
NATIONAI.. II DECBMBER1986

President José Azcona, in a rare recognition of Contra rehel presence in
Honduras. said lie has not asked the United States to order the Contras back
over the border to Nicaragua.
Azcona went on national radio Wednesday to deny reports his Government
is trying to expcl the US-backed rebels from Honduras. Later. he told reporters
Honduras would prefer it if the rebels fought their hattles in Nicaragua.
"What we have said and what we do maintain is that the counterrcvo-

lutionaries (Contras) should be fighting in Nicaragua for the frcedom of their
honieland, but WC have not made aiiy requests in that regard", Azcona said.
"The Honduran Government is no1 ~ressinr the United States so that the
Contras leavc Honduran terrilory. But iihas made known (10the US Govern-
ment) ils concern over the presence of these irregular forces in the colintry",

Honduran officials have said Nicaraguan soldiers crossed in10 Hoilduras
las1 week in an apparent attempt to strike at Contra camps: wounding three
Honduran soldieisand capturing two.
On Sunday, Honduran warplanes strafed Nicaraguan troop positioiis and

US-piloted helicopters ferned troops in10 the area. some 80 miles east of
Tegucigalpa to rcpel the attack.
Manaeua earlicr re~orted seven of ils soldicrs were killed in the firhtinr.
"The ?ontras are in Nicaragua but enter and exit Honduras bccaÜsï it-is
very difficult fo11sto guard that border", he said in a rare recognition of the
Contras' presence in the rugged frontier hills.
Tegucigalpa has never officiallyrecogniïed that up to 15,000Contras operate
out of Honduran hase camps.
Azcona told reporters Honduras would continue to fight any Nicaraguan
presence in Honduras but said he did not foresee war between the two nations.
"What we are going to do is tocontinue to bomb the positions they occupy

and also employ our army to force them out of the country". Azcona said.
However. hc said. "1 do not believe there will be war with Nicaragua. Not in
anv2wa-> "
In Managua, Nicaraguan President Daniel Ortega called Azcona's state-
ments "hirhlv dannerous" and blamed Honduras for the recent border conflicts.
"~ondirts haccreated the problem by ceding to US Government pres-
sures and allowing the mercenary citmps". Ortega said.
"The new philosophy of President Azcona, that of using arms, shows that
eventually the Honduran armed forces might bomb Nicaraguan artillery that
is in Nicaraguan tcrritory,because the Nicaraguan artillery can reach up 1013
miles inside Honduran territory". he said.392 BORDER AND TRANSBORDER ARMED ACI'IONS

Annex 5

"INTERVIEW WII'IPRESIDENT JOSÉAZCONA", 1'EGUCIGALPA VOZ DE
HONDIJRAS2,2 APRlL 1987,PRINTED INFBIS,28 APRIL1987

[Nol reprodircedl

Annex 6

"HONDURANCONGRESS LEADERSAYSNICARAGUA REBELS SHOULD GO".
REUTERS NORTHEUROPEAN SERVICE,2 MARCH 1986

[Nor reprodncedl

Annex 1

ARTICLE QUOTING HONDURAN FOREIGNMINISTER L~PEZCONTRERAS EL
TIEMPO,24 NOVEMBER 1986

[Nor reprodircedl

Annex 8

LETER FROM AHPROCAFE TO UNITED STATES CONGRESSMEN,
12JANUARY1987

[Nor reprodircedl ANNEXES TO THE COUNTER-MBMORIAL

Annex 9

UNITEDSTATESECONOMIC AND MlLlTARYAID TO HONDURAS1977-1986,
FROMBANANACASI~S 'r0CONI'RABASES:A CHRONOLOGY OF UNITED
STATES-HONDURAN KELATIONSJ.ANUARY1977 1'0JULY 1986. CENTRAL
AMERICAN HISTORICAILNSTITUTE(WASHINGTON D,.C., 19AND;"US SAlD
TO LlNK LATINAID SUPPORTFORCONTRAS", NEW YORK TIMES, 18MAY
1987

[Nor reprodriced/

Annex 10

"FORMERAKMYCHIEFSAYSCIA BRIBEDHONIIIJRANPOLITICIANS",
ASSOCIATEDPRESS,1 APRIL 1987

[Nor reprodrrcedl

Annex 11

"OUSTEDCHIEI: OFHONDURAN MILITARYWASHIRED AS US DEFENSE
CONSUI.TANT" ,ASHINGTON POST. 10MAY19x7

[Nor rrprodrrced]

Annex 12

1981ATTHEFKONTIER STATION OFEL GUASAUI.EN, ICARAGUA

[Sce Mernorial of Hondrrrrr2,supra] BORIJERANDTRANSBORDER AKMED ACTIONS
394

Annex 13

ISpanish texrunor reprodrice<l/

Embassy of Nicaragua.
Tegucigalpa,

Republic of Honduras.

PROPOSAIF . ROMTHECHANCELLOR MIGUEL D'ESCOTO TO THE CIIANCEI.I.OR
EDGARDO PAZ BARNICA

(1) To hold a meeting immediately between the chiefs of the armies of

Honduras and Nicaranua in the framework of the Guasaule agreements.
(2) H;iir.d on ihr. ;iho\~-mcntiuncJ iiiectinS. in ni:ikc niin.je.rc;i#,rr.c-
mcnis bciuccn the Go\'r.rnmcnl\ uf Nic;ir:igu:i ;und Hun~lurti\
(. .'Io cjinhlisha >\stL.iiioi luint p;it111our <iiiiiiiion tiorIi)prctcnt
activities of arnied elements who endanger relations betwecn bolh coun-
tries.
(4) To dismantlc the camps of Somocista counier-revolutionary groups in
Honduraii territorv. and cause the withdrawal from the border zone of
any kind of concenlration of these Somocist elemenls.
(5) To prcvçiii thc installation of any foreign naval base in the Fonseca Gulf
without the express agrccrnent of the three States whose sovereigniy
iointlv covers this Gulf.

(6) To undcrt;ikc systematic bilateral programnies in the political, economic.
diplornatic, military and security fields, as well as, cultural social and
siorts. etc.. in ordér to strenethin relations between both countries, 10
analyse common problems a& to promote peace.
(7) To pruceed in su organized manner, with the co-operation of the appro-
priai~ international organizations. towards the eventual voluntary repalri-
ation to Nicaragua of those Misquitos who wish Io do sa. ANNEXES TO THE COUNTER-MEMORIAL

Ministry of Foreign Affairs,
Managua. Nicaragua.

March 15th 1982.
Directorate of Legal Affairs
ACZINo. 108

Dear Minister.
I h;ise the hoiiour to addrr.,s iiiy\c~lito Your Excr.IIcnç)..in ori<,rcport
un ihr. serious situ;itii~nth.ii no<\,oht:iin* in Central ,\inerica

<:i>n\iJcrinr ihc siiiccrç desofethc C;u\~rn~n~nIof Nic;iri~<uii0 bircn~thcn
her bonds with the sister reoublic of Honduras. we consider i<aoorooriatë that
a meeting hetween the ~inhers of Foreign Affairs of ~ondura;and'of Nicara-
gua be held on a date convenieiit to Your Exccllency. It is our helief. that
ïhrough a frank and fraternal dialogue, it will be possible to achieve a greater
understanding between our nations, which will be of clear bencfit to the peace
and tranquillity to the whole of the long-suffering Central American region.
The acute crisis in which Central America has fallen today, requires from us
great maturity and patriotism in order to prevent greater disorder, the first and
main victims of which will be the peoples of the rcgion.
We are confident that Your Excellencv will ~ositivïlv welcome our invita-
tion to dialogue. 1takc this opportunity to reit&atc to Iour Ercellency proof

of my highcst and most distinguished consideration.

Miguel D'ESCOTO BROCKMANN.
Ministcr for Foreign Affairs.

To the Right Honorable Edgardo Paz Barnica,
Minister of Foreign Affairs,
Tegucigalpa, Honduras.

Ministry of Foreign Affairs
Managua. Nicaragua.

Chancellery
MDBigm No. 197

August 24th 1982.

Excellency,

As you must be aware, in recent months relations hetween our two coun-
tries have experienced considerable tension. caused by a series of events:396 BORDER AND TRANSBORDER ARMED ACTIONS

mainly the deterior;ttion of the situation on our common border. This state
of affairs puts the peace of Central America ai risk, in face of which. my
Government is determined not to curtail efforts coniributing io the improve-
ment of our mutual relations.
This has always been our desire, which we recently reitcratcd with the
invitation sent by the Co-ordinator of our Government of National Recon-

struction, Commander of the Revolution Danicl Ortcga Saavedra, to Your Ex-
cellency Dr. Roberto Suazo Cordova. President of the Republic of Honduras.
Your Excellency, 1bçlicve this to be a most convenient lime to recapture
the spirit of the agreements reached at the summit meeting of El Guasaule on
May 13th 1981. and that of our discussions held during my visit to Teguci-
galpa on April 21s1of this year. In that sense, with grcat pleasure, 1could re-
ceive you in Managua sometime next week. on the 1st.2nd or 3rd of Septem-
ber. at your convenience.
1 am in no douht, Excellency. that this meeting will bring about highly
positive results for the welfare of both our countries.

With my highest consideration and personal regard.

Miguel D'ESCOTOBROCKMANN

Ministcr for Foreign Affairs.

The Right Honorable Edgardo Paz Barnica,
Minister of Foreign Aflairs.
Tegucigalpa, Honduras.

Officia1 /erreNo. 828-DSM

Tegucigalpa. D.C., Seplember 9th 1982.

Dear Minister,

I have the honour to address myself to Your Exccllcncy. in order to accom-
pany the Iettïr sent by the Constitutional President of the Rçpublic Dr. Robcrto
Suazo Cordova to the General Co-ordinator of the National Government of
Reconstruction of Nicaragua. Commander Daniel Ortega Saavedra.
Likewise. 1wish to rcfer to Your Excellency's tclcx of the 4th of the pre-
sent month. in which you reiterate your suggestion that we meet in Managua
in order to discuss the present situation between our two countries.
Unexoected circiimstances and orevious eneauedents have made il imoos-
sihlc for me 10 aciciid thî mcct~ngrclcrrîd to h?Your E\ccllcncy. H<i\vc\,er.
1hclicrc \uch mcctinr ruuld bc held ;i, ruun ;ii ihcsc circunisi:iticc> pcriiiit.

1 wish to reiterateio Your Excellency the dctermination of the Govern-
ment of Honduras to work for the consolidation of fraternal and respectful
relations betwcen our two countries, and the exchange of points of view and
criteria conducive to the implementation of the Peace Proposal for Central
America formulated by the Government of Honduras on March 23rd last. ANNEXES TO THE COUNTER-MEMORIAL 397

Your Excellenc)~should rest assured of our conviction that dialogue is the
best wav of anal,sine situations and of solvine ".oblems. This conviction
springs from Our honest interest in the creation of the coiiditions necessary to
establish the bases for a long.an. lasting understanding b.twccn Hoilduras
and Nicaragua.
I take this opportunity to reiteratc ta Your Excellency, this proof of my
highcst and most distinguished consideration.

Edgardo PAZBARNICA.
Minister of Foreign Affairs.

The Right Honorable Dr. Miguel d'Escoto B..

Minister of Foreign Affairs.
Managua. Nicaragua. Annex 14

COMMUNICATION t'ROMTHE MINISTERS l'OR FOREIGNAFFAlRS OF THE
CONTADORA GROUPADDRESSED TO THEFIVBCENTRALAh4ERlCANHEADS

Panama. 7 September 1984

On 9 June 1984 wehad the oleasure of transmittine -, vou. on behalf of our
respective Governments. the diaft Tontadora Act on Peace and Co-operation
in Central America". Today we respectfully submit a new version reflecting the
observations and views which the-five Cintra1 American Governments have
put fi,ru,:ird csinccrning ihc dr;~it,\ci
'l'hi*I;iicsi vcrsi<1.the rc.,uli~ian intcnsr pri>cc..i~i~~i~ii~ull;iti~;id;iit~

hr,i:id ~xch;ingci>fvieus \iiiItdl 111~C.~.ntr:ilAnicri~iiit (ii>vcrnmc.ni,. ulti:h
providcd ihc C~ini;~d,,r;aCiriiup iiiih v;ilu.thlc iilc.15f,,r rctii.ind cnh;in.
clnc ihc Ait :in4 (<>r(:~cd,ti~ttn~a:ckm\Cn.u~10;11~ould hr rcflcctcd in Icgal
commitments undertaken by an the parties.
The purpose of this effort was to find viable formulas that would reconcile
the various interests and to promote appropriate and firm political under-
standings that would guarantee regional security and respect for national
sovereientv.
The revised version of the Contadora Act once again highlights the princi-
pal role of the Central American Governments in the peaceful settlement of
ihe disputes and in overcoming regional problems.
The process of dialogue and negolialion that motivated the Contadora

Group has enabled significant progress to be made in the search for peace
and co-operation, progress which is reflected today in numerous points of
aerccmïnt and in the creation of a cohïrcnt framework of undçrstandinli
embodied in this revised version of the Contadora Act. The Central mer:
can Governments should now display the political will needed to give legal
force to the commitments formuiated durine this orocess and should th&-
fore adopt whatevcr realistic and equitablc formblas for conciliation they
deem appropriate.
The sianinr of the Contadora Act on Peace and Co-overation in Central
America ;hoÜld provide the basis for security and coexiStence governed by
mutual respect which is essential for guaranteeing the political and economic
stability sodesired by the peoples of the arca.
The nroeress made in the effort to orevent anv aeeravation of the conflicts
~ .. . . .,
in the rcgitin. thc ;id\;incc in ilic di[ili~m:iticncg.iil~ti~iii~.thc ~trcngthening of
!lie p,iliiic:\vilto ioster di.ilog-ir':inJ undcr*tsnding :inJ Ihc I>rci;iJinicr-
national support for the contadora process are al1clcar. However, it should
no1 be forgotten that the arms build-up in thï region is still continuing, as
are the armcd aggression, the border incidents. the destabilization operations
and the foreign military presence.
In thc light of the persistent threat to peacç, we believe that the Govçrn-
ments of the region must expcdite the proccss of assuming the legal commit- ANNEXESTOTHECOUNTER-MEhtORIAL 399

ments containcd in the Contadora Act. Similarly. it is imperative for other
governments with interests and links in the rcgion to respect the right of self-
determination of the Central American pcoples and demonstrate unequi-
vocal support for political negotiation in place of force, and for understand-
ing and co-operation among al1the govcrnmenls of the region.
Negotiating implies yielding somc ground in order to sccure the ultimate
obiective which is considered essential. Onlv throueh honourable. iust and

. .
Central ~mGican countries.
The Contadora Group today expresses ils satisfaction al the progress in
negotiations and at thc developnient of an effective framework for a political
and leeal understandine. At the same timc, it reaffirms ils unswervin~ com-
mitment to continue phnoting dialogue. as well as diplomatic efforts-to en-
sure that the principles of international law are fully applied and that the
Central American peoples exercisc their right of self-determination.
As you know, the United Nations and the Organization of Amcrican States
have exprcssed their confidence iiand support for the work of the Contadora
Croup. In various resolutions, they have stated lhat they wish tu be kçpt in-
formed of the progress of the negotiations which WC have been promoting
with a vicw to achieving peace and dialogue in Central America. WC will
therefore notify those international organi~ations in due course of the pro-

gress made in the important phase chat has culminated in the submission of
the revised version of the Act. which we arc today transmitting to you.
We arc confident that in the not too distant future' we the Ministers for
Foreign Affairs of the Contadora Group and Our colleagues in the Central
American rcgion, once the improvements considcred relevant are made. will
be able to sign the Contadora Act on Peace and Co-operation in Ccntral
Amcrica.

Accept, Sir, the assurances of Our highest consideration.

(Signed) Augusto RAMIREZOCAMPO,
Ministcr for Foreign Affairs of Colombia.

(Signer/) Bcrnardo SEPULVEDA AMOR.
Ministcr for Foreign Affairs of Mexico.

(Sigrierl) Oydcn ORTEGA DURAN.
Minister for Foreign Affairs of Panama.

(Signed) lsidro MORALESPAUI.,

Minister for Foreign Affairs of Venezuela.400 BORDER AND TRANSBORDER ARMED ACTIONS

Annex 15

[Sppunirhrexrno1reprodirced]

(Te1r.rMessirgr)

Managua, 21sl Sept. 1984

Presideni and Friend:

1am pleased to address myself io you in this occasion, in order to transmit
the Nicaraguan response to the draft of the Revised Act elaborated by the
Contadora Group and forwarded to us with note dated September 7th of ihis
year from thc Minisiers of Foreign Affairs of Colombia, Mexico, Panama and
Venczucla.
Nicaragua at present faces a serious increase in the threats and military
aeeression on the oart of the Government of the United States of Amcrica.
thYain recent weeks has returned to its scrics of murders. the kidnapping of
men. women and children. extensive damage 10 the economv. and the destruc-
tion of the scarce resources of this countrf
Ai the same lime, the thrcatening presencc of North American naval ves-

sels jus1 a few miles from our coast-line, the direct participation of CIA
mercenaries in attack on Our territorv and the incursions from neiehbourin-
ierritories of more than six thousand Somocista counter-revolutionaries.
makes up a scenario of aggression that our nation continues to repulse with
al1ils energy and patriotiim.
The will of Nicaragua to contribute to the limit of ils possibilities to find
peaceful solutions to the grave regional situation, as wcll as the recognition
that thc rcviscd Act constitutes an important effort to reconcilc diffcrïnccs
and to cquilibratc the requirements of al1parties, has led us to consider the
abovc-mentioncd revised Act as a decisive instrument for the achievement of
pcacc in thc region.
For thc reasons set out here. we bring10 your attention the decision of the
Governmeni of Nicaragua to accept in its iotality and immediately to sign,
without modificatioii. the revised Act of Scptember 7th presented by the
Contadora Group in pursuit of peace and the security of al1 the peoples of
Central America.
Nicaragua is conscious of the need to achieve a peace agreement for the
whole region, as soon as possible, in the form proposed by the Governments
of the countries that make up the Coniadora Group; we are also conscious
ihat the agrceinent reached betwecn the five Central American countries to
guarantee pcace and security in the region. will only be sufficient if it can
count upon a normal and obligatory undcriaking by the United States Govcrn-
ment. Nicaragua considers it indispensable in order to achieve the nohle
objectives which constitute the meaning of Contadora, that the United States
sign and raiify the additional protocol of the Act, and in consequence, bring
to an immediate hall the aggression against Nicaragua. Taking into account ANNEXES TO THE COUNTER-MEMORIAL 401

the view of the Contadora Chancellors in their letter of September 7th to the
Hcads of Statc ofCentral America, that the revised Act "reflccts the «bser-
valions and coninicntaries that the five Ccntr;~l Amcrican Governnients had
formulated on the draft" and that "thisatest version is the result ofan iittense
process of consultation and an ample exchange of points of view with ;il1the
Central American Governments", as well as what is indicated later on in the
sense that "Io negotiate implies to give some concessions in order ta achieve
one maximum objective thought to be essential". Nicaragua considers that it

is essential that amendments or modifications not to be introduced. If this
werc to occur. the result would only be endless discussions that would serve
to interfere with the pcace process that our peoples are rightIo demand sa
urgently.
President and fricnd, please rcceive the gratitude of the peoplof Nicara-
gua for your continuing efforts Io support the achievement of pczice in the
region.
The people of Nicaragua. while endorsing the Revised Act of Cont;idora.
continue to defend thcir right ta self-determination, sovereignty and indepen-
dence. with their lives still threarened by the aggressive policy of the North
American Government.
So long as aggression does not cease. the Government of Nicaragua willcon-
tinue ta defend its inalienable right ta adopt al1mcasures necessary ta guaran-
tee our security and territorial integrity.

Fraternally,

Daniel ORTEGA SAAVEDIIA.402 BORDER AND TRANSBORDER ARMED ACilONS

Annex 16

A: "DOCUMENTDESCRIBESHOWUS 'BLOCKED' A CONTADORA TREATY".
WASHINGTO NOST. 6 NOVEMBER1984;B: "BACKGROUND PAPERFORNSC

The Reagan administration believes it has "effectively blocked" what il
views as an "unsatisfactorv" reeional Deace settlement in Central America.

according to a secret backgroind paber prepared for a National Securiiy
Council meeting las1Tuesday that the President attended.
The paper also outlines a wide-ranging plan to convince Americans and
the rest of the world that Sunday's Nicaraguan elections wcrc a "sham", pro-
moting this view through US embassies, politicians, labor organizations. non-
government experts, and public reports.
The briefing paper. marked "secret/sensitive". was obtained by TlzeWash-
ingron Posr from govcrnmental sources. It provides a detailed look al the
administration's approach to the Sandinista government just days before
elections inNicaraeua and the United States.
Iii., no! knoun \\hcihcr :ilthe item\ in ihc hriding pnpcr vcrc Jiscus~cd.
Scirr.t.ir<ifSt:iic Ceorse P Shullz aiid i\ssisinnt Scîrct:ir!. fur Intcr-Anic,ri-
c:in AIfii~r~I.~,iicli~~\n \1,1ilc\, ;aIw ~aii~iiuh;ii tt.1Jc~~iril~cchi\ a!fii-
.
cials yesterday & a "briefing".
The paper discussed thc administration's approach tu the draft version of
the Contadora peace treaty that was completed Sept. 7. Il was negotiated by
the foreign ministers of Mexico, Panama, Colombia and Venezuela, who first
met for the purpose in 1982on the small Panamanian island of Contadora.
The treaty's principal thrust is to reduce foreign military influence. estab-
lish mechanisms for arms control, and prevent the Central American coun-
tries from making or sponsoring war on each other.
On Sept. 21. Nicaragua uncxpectedly announccd ii would sign the 55-page
draft treaty. The Reagan administration had no1 publicly criticized it up Io
that point.
Since the Sandinistas announccd their willingncss to sign il. three coun-
tries - Honduras, El Salvador and Costa Rica - reversed their previous

position of support for the treaty and, along with thc United States, sought
extensive modifications in the draft to improve verification and execuiion
mechanisms.
The paper declares:
"We have effectively blocked Contadora Group efforts to impose a
second draft of a revised Contadora Act. Following intensive US con-
sultations witli El Salvador. Honduras and Costa Rica. the Central
r\incric:insrzsuhniiticditcaiuntcrJr.ifi io ihc CuiitiiJtira it<>IIOci.

?O. 1'184 . ihai ';hifi\ conL.crnuiihin Çontadorn t;iJc~iumcni hr(i.8dly
consistent with US interests."
The United States rcpeaiedly has portrayed the decision by Central Ame-
rican countries not to approvc the initial draft treaty as one made indepen-
dcntly by those countries, despite consultations. ANNEXES TOTllE COUNTER-MEMORIAI. 403

The briefing paper expresses concern that a fourth Central American
country. Guatemala. has bcen rcluctant to back ils three neighhors in seeking

changes in the treaty. "We will continue to exert strong pressure on Guate-
mala to support the basic Core Four position". the paper says. The "unccrtain
support" of Guatemala is "a continuing problem", it adds. The term "Core
Four" refers Io Giiatemalzi, Honduras, El Salvador and Costa Rica.
Mexico has bccn the most insistent promoter of signing the Sept. 7 version
of the Contadora trcaty. The bricfing paper notes that Guatemala, bccause of
ils problems with guerrilla insurgency along the Mcxican border, is sïcking
closer ties to Mexico, providing a "strong incentive" for Guatemala to lean
toward the Mexican view.
But the paper concludes in a summary:

"We have trumocd the latest Nicarap.uan/Mexican efforts Ir>rush
signature of an un;atisfactory onta adora agreeme nnd. the initiative
is now with the Core Four. although the situation remains iluid and re-
quires careful managcment."

The p:iper ii,>te;thal the :iJiiiiiiisir~tiun rcccnil! h:ar 1i.d 'nii\cJ" \ucic\s
IIIJe3lliir: with Sic:ir.igu;i. '.Ciingre,sii>n.il f.iilurI,, luiid the .<rnicJ ol)p<>-
siiiim i\ :I\cricjus Iiirrhut ciur h.iiiJlinr O! the Yic:ir.icu:in clcct~oiiihuc ;anJ

Sandinista mistakes have shifted opinion against the &am elcctions", it says.
This was the administration linc before and alter the election. But the paper
outlines ways in which this vicw should be promoted throughout Ihc world.
It calls for encouraging "sympathetic American intellectuals and acade-
mics". "US labor" and "sclcctcd US political figurcs" to lobby thcir counter-
parts in Europe and Latin America. seeking critical statcments about the
election.
Another proposal was for the United Statesto use "selected embassies" in
Europe and the Western Hcmisl~here to promote administration views.
"Embassy Bonn will approach West German ex-chancellor Willy Brandt to
detennine if he plans to make any public statement" on the election following

the withdrawal of a key opposition party.
That withdrawal "has now left the Sandinistas holding a near wo-thless
band", the paper says.
The documcnt ;ils0 takes notc of US-Nicaraguan bilateral tiilks hosted by
Mexico. At the 6th round. hcld in September, the US aide "tabled" zicompre-
hrrisi\.c il;ilcnicnl hy Sic.ir3gu'i. the'h:~cksround p:ipcr snys. ncldiny!ih:ilthc
S.inilini\t.i\ li.~vc.iJiiptiJ the5r.lii7 icrsi,,n ci!the Ciini:,di,r.i trc;it\n. their
iic~,~t~~ti~,~~pi~,~iIiui>-.'t-\ithe L1nite,l5Iatc, ~cll.

The situation in Central America. particularly in El Salvador and in the
rceional oeace talks. is movinp.in a direction favorable to US interest. though
Jiiliciili prc>hlcm. rcni~iin.ln~ic;ir:igu.. the picturc is mireJ. ~ongrcssioi~:~~
i;iilure10 iuiid tlic.irnieJ i>pp<~sitioi ir:i \r.rii,uI<ibb.hut trur haiidling 611ihc
Siç:ir;irux c.lc.~ii,iiissue ;inJ S:indini\ta niiri;ihii h:i\c .hiltcd opiiiit?ii:ig;~in.I
the sham elections. We hnvc trumpcd the latest ~icaraguanl~~xican elforts404 B0RC)ER AND TRANSBORDER ARMED ACTIONS

to rush signature of an unsatisfactory Contadora agreement and the initiative

is now with the Core Four. although the situation remains fluid and requires
careful management.
This paper provides a summary assessment of issues raised in the NSC
memorandum of October 24. 1985.

Cerrtral Americun Ni.gorinrir»ts

(1) US-Nicorirgiru hilrrierrrl frrlks. Ambassador Shlaudcman has held six
meetings with Vice-Foreign Minister Tinoco. The seventh round is set for
October 29-30. WC tablcd a comprehensive statement at the most recent
meeting on September 25. Nicaragua's adoption of the September 7 Acta as

its negotiating position at Manzanillo has virtually eliminated earlier Hondu-
ran concern that the Manzanillo talks might "undercut Contadora". To the
contrary. it has led thcm to see that our bilateral talks strengthen the Core
Four position within Contadora. Pursuant to Presidential decision a key US
objective remains tu hclp obtain a Contadora trcaty which simultaneously
implements the Contadora 21 Objectives and provides for effective verifica-
tion. Reports and kcy documents on these talks since the NSPG meeting of
lune 25, 1984,include:

- Memorandum for Mr. McFarlane from Mr. Hill. Scptcmber 28. 1984.
- Calendar of Reciprocal Steps, September 6, 1984.
- Memorandum fur Mr. Hill from Mr. Kimmitt, August 31, 1984.
- Memorandum to the President from Acting Secrctary Dam. August 21,
...4..
- Memorandum frim Ambassador Shlaudeman tu the Secretary, August 2,

1984.
- Memorandum from the President. July 28. 1984.
- Memorandum from the Secretary to the President. June 26. 1984
(2) ('art,fi~ltrl~oulto,r otilhr,dr<rfii'o,rii,ili~ï'r<~<rlWCh:,i.c cffcctii,cly
hli~çkcilCuiii;idora Group cfforis IO inip<iscthc çcc<inJ draft oi a RcviscJ

(3<,iii;i<lur:,i\ci. Folli>ainr iiiiciiIJSeciinsult:tii<in~wiih 131SaIi.liJ<ir.tli>n-
<lur;i$and Cos1.i Kicci.Ihc Ccntr.il r\merir:tn \uhniiiic<la c<iunicrJr;ifi($tg-/IO
ihe (:ont.id~>r;iSiciies<,II(.>ii,ihc211. IYW. Ilrcflccti iii:tny of aiur ciinLcrni
:inJ shifis ihi fucus iiiihin C,~ni;iilor:10;idocumcnt hro;idls consisicnt u.ith
US interests. A copy of the new draft is being sent tu each NSC agency. with
English transl;ition cxpccted by the October 30 meeting. We will continue tu
seek Core Four support for these concerns cxpressed by us but not "incor-
porated" in the rcvised Corc Four drafts. A survey of proposed Core Four
changes is containcd in Tegucigalpa 13080and San JosC 8392.

The Four Contadora Group Vice-Miuistcrs will meet in Panama October
31-November I for tcchnical review of the Core Four drafts and revision of
their own. Contadora Group Foreign Ministcrs would then meet November
9-10 to revicw rccoinmendations of the Vice-Ministers and al1 nine Foreign
Ministers would meet in Brasilia at the lime of the OAS General Assembly
November 17.Contndora spokesmen have become notably subdued recently
on prospects for an early signing. While some now concede that agreement
may no1be re;ichcd for some months, others rcmain concerncd that early sig-
nature is dcsirable. Secrctary Shultz will discuss next steps in this process at
the NSC meeting.

(1) Proposed US effi,rts 10 obtairi Giratemril~uiCo-ol~er<rrionin Corifadorrr
Procrss. The uncertain support of Guatemala forthe Core Four is a continuing ANNEXES TO 7HE COUNTER-MEMORIAL 405

problem. Guatemala's chie1security concern is its guerrilla insurgency and the
sanctuary that il has. until recently, enjoyed in Mexico. Mexico's removal of
the border refugee camps and the need for future CO-operationprovide a strong
incentive pulling Guatemala toward Mexico in Contadora. We have under-
taken intensive efforts with Foreign Minister Andrade and Guatemalan Chief
of State Mejia on this issue. lllustrative of these efforts wcre the Sccretary's
October 10 meeting in Panama with General Mejia (Secto 12025).the Secre-
tary's meeting with Andrade and other Core Four fureign ministers in New
York on October 5 (Statc 298926)and President Duarte's ciforts with Gencral
Mejia (San Salvador 11393and Guatemala 10043). Serious personality prob-
lems between Honduran Foreign Minister Paz Barnica and Andrade c«ntinue

to hamper efforts to keep the Core Four together. We will continue to exert
strong pressure on Guatemala to support the basic Core Four position.
(4) Mericnn ntzd Nic<ir<igiinrrzicriviryor rhe UN,OAS et al. Mexican and
Nicaraguan representatives have been highly active but so far unsuccessful in
efforts to obtain international endorsement for the September 7 Contadora
draft. The Secretary was direct iiiexpressing our displeasure at Mexiciin con-
duc1 al the UNGA 1State 302056). Reoorts and actions relatine to recent
Nicaraguan Mexican àctivity at thé Uniied Nations are containez in USUN

2845, 2763, 2884.and Statc 315605, 315894, 317226and 317809. A summary
report of the EC-Contadora Foreign Ministers conference is contained in San
José7644.
(5) US efforts ro help rlre C(~reoirr. Covçrçd under item (2) abovç. The
followine cables describe sevcriil asoects of recent US efforts to heln the Core

(6) Any plorzsfor US signnrrire of d»crrmenrs. This requirement is unclear
but presumably rcfcrs to the unauthorized hackgrounding in Washington
during the Secretary's las1 trip to the region that an agreement would he
signed with Nicaragua in Mexico. That hackgrounding was erroneous and
unheloful to US intcrest. The Administration is on record in oooos..ion to
\ignin,:n Proii,c$,l.hoth in princip:($i<,:ind pccific;illy in ihc c.of C1iiii;i-
ri. \Ve liavs :iticmptcd 10 prcvr'iit :idopiiong~f.iPr<otocùlihai uould hc
open 10Cuban. Soviei. or other unwelcomed signatories. Howcver, this con-
tinues to be an important concern.

(7) US expecrarions offiirirre evenrs and slruregy ro obrobi on iicceproble
treuty. Secretary Shultz will address this question in his presentation in the
NSC meeting.

Piiblic Diplortzucyrrboirrrhr November 4, 1984, Elecrion in Nicrirngiro

We have succeedcd in returning the public and private diplornatic focus
back in the Nicaraguan elections as the key stumbling block to prospects for
national reconciliation and oeace in the reeion. The breakdown of the Cruz
ncp,oti;itii,IIIKi<>corroh<>r;iiiuiihy SI iiicnilicrs that ,\rcc h;ickcd awnyirum
ihe S1.S poosiiin once ilhcianic :ipp:ircni 1h:ii Cru,, w;is prcparcdici\eck
approval of the Arce proposal har.e~allcontrihuted to this iurn of events. as
has Duarte's La Palma initiative. The PLI withdraival [rom the elections has
now left the Sandinistasholding a near worthless hand. An election hcld on No-

vember 4 will not give them the legitimacy they covct, although it will further
consolidate Sandinisia control over Nicaragua. Eff(~rtscontinue to press the
Sandinistas to postpone the clections and agree to Coordinadora dcmands.406 BORDER AND TRANSBORDER ARMED ACTIONS

Our public diplomacy strategy. approved by the NSC. is contained in Mr.
Kimmitt's Memorandum to Mr. Hill, dated Ociober 24. 1984. A follow-up
memorandum on the Nicaragua elections is attached.

Attachmeni. As stated

Pirblic Diplomocy or1Nicurugiru Elecrions

A. Pluns ro /~rovi<leihefacrs to lhe USpirblic

SiLDP has prcpared a report, "Resource Book: The Sandinista Election
in Nicaragua". which documents the undemocratic nature of the election.
Advance cooies arc alreadv beine di..ributed tu selected iournalists. and on
Octobcr 29 ;iwill hc rclc;i;cd lur!a;illy Copie5 ivillhr. ir;i&mittcd tu sclecierl
iiicnihcr\ of Congrc>s u,lio arc Iikcly io cominciil uii ihc 'Iic;ira~u;iiiclcr.ti<in~
(Scn:iic I:,>rcien Rclition. <:<immiiicc. Housc Lirei~n ,\ff.iirs C.~nimittcc.
etc.) and scnt ïo our general mailing list of government officials and innuen-
tial opinion leiiders around the country.
SiLDP is preparing a compilation of statements on the elections by San-
dinistas themsclves, key political and church leaders in Nicaragua and notable
foreign leaders. This paper. translations of Bayardo Arce's speech to the
Nicaraguan Socialist Party, and the FSLN's propaganda plan for the elections
will be distribiited 10 selected memhers of Congress, journalists and opinion
makers.
ARA is preparing a report comparing the Nicaraguan elections with those
in El Salvador for release tu the press and selected members of Congrcss.
Administration officials will give background briefings and interviews tu
selectcd members of the press and seck opportunities tu appear on the media
to discuss the elections.
SILDP is prepariiig a Public Diplomacy guidance on the elections for use
throughout the government.
We shall cncouraee non USG exoerts tu make oublic statements. oreoare

articles, and appcar8n the media programs, espe~ially immediately Prie u
and following the November 4 elections, e.g., the morning TV shows on No-
vembcr 5.
Followine thc clcctions. SiLDP will oreoare a follow-uo reoort on the elec-
tions analy&g how the process unfolded ihc mcaning oi the'results, and the
prospects for pluralism in Nicaragua's future.

B. Phins ro provi<lethe Jacü fo rhe inrerr~nrior~iiclommiority

In selected OECD and ARA posts we willapproach significant and know-
ledgeable national leaders. in and out of government, to encouregc public
statemenis condemning the Nicaraguan elections as they are now set up. Use-
ful siaiemenis could come [rom government officials, political party leaders
including international parties. such as (SI EDU), intellectuals, church and
labor leaders.
We will encourage selected US political figures tu contact their countcr-
oarts in Eurooe and Latin America askine that thev (t,e ~ounteroarts. mak,
Public statcm~nts criticizing Nicaraguan élections.
US labor will contact counterpart organizations in Europe and Latin Amc-
rica sçeking statements criticizing elec6ons in Nicaragua as now set up.
We will encourage sympathetic American intellectuals and academics tu ANNEXES TOTHECOUNTER-MEMORIAL 407

contact their counterparts in Europe and Latin America to examine the validity
of the elections in Nicaragua, or to gel their counterparts to let Nicaraguan
leadership know (preferably through public statements or letters) that they are
skeptical ofthe electionsas now set up, that they haveerious doubts about the
elections now that the Contador;~and PLI have withdrawn, and that they will
be watching the elcctionsclosely hoth before and after Novemher 4.
We will follow up with the Vatican recent statement condemning perse-
cution of thç Church in Nicaragua.
Selected embassics in OECD and ARA countries will bç ;isked to ap-
proach key contacts to rcvicw our views on the elections in Nicaragua. Media
confacts should be encouraged to write editorials questioning the validity of
the elections.
Embassy Bonn will approach Willy Brandt to determinc if he plans 10
make any public statements on tlie Nicaraguan elcctions now that the PLI has
withdrawn from the campaign.
USlA will send a fact sheet on Nicaraguan elections via Wireless Filc lo
Europe and Latin America.
VOA and Wireless File commentary will be sent using statements ques-
tioning the validity of the Nicaraguan elections made by European and Latin
American Leaders.

VOA and Wireless File commentary will carry SlLDP prcpared back-
grounder on Sandinista clcctions.
Wireless File will distribule Comandante Bayardo Arce's speech to the
policy committee of the Parlido Socialista de Nicaragua and othcr relevant
material prepared by SILDP.408 BORDER AND TRANSBORDER ARMED ACI'IONS

Annex 17

LETTERFROMFOREIGNMlNlSTERSOFCONTADORACOUNTRIESTO
FOREIGN MlNlSTERSOFCENTRALAMERICANCOUNTRLES6. JUNE1986

[Spntiish rerr iiorreprodrice<l]

Managua. 6th June 1986.

His Excellency Dr. Miguel d'Escoto Brockmann,
Minister of Foreign Affairs of Nicaragua.

We, the Ministers of Foreign Affairs of Colombia, Mexico, Panama and
Venezuela met onthe 6th of June 1986.a date jointly agreed in order to offi-
cially conclude the iiegotiations on the Act of Contadora for Peace and Co-
operation in Central America. and to proceed towards its ratification. We
shared our conclusions with the Ministers of Foreign Affairs of Argentina,
Brazil. Peru and Uruguay. Jointly. we examined the situation in Central
America and analysed the perspectives of diplomatic negotiation in the Re-
gion.

We observe, that besides some positive attitudes. there still prevail in
Central America situations of deterioration of conflict. Reeiona~ a~-~ ~ ~ ~ ~~ ~ ~ ~
tional security interssts oblige us not to desist from Our objective of Peace.
This situation implies the responsibility to continue 10 givc our attention to
the solution of the reeional ckisis. conscious as we arc Of its imoortance and
lhc r,#luc\ t1i;;ire :toinpr~mi~,cJiur .IIIto~r.wntincni
\Vc hcg;>iiOur rcilecti<inliv ;iii;$l)*insihc I1ccl;ir;it<>C\qu~pul.~>u .liicli
containi the r<inclu~ions ,>f;inieciin* ivhich 1s no\\, con.idcrcil tu lie liisioric.
ifonl! hcc:iu\c uf ihc kici of h.ii.in3 hruusht iogcihcr ihc II\,hzÿd* of Si.iic
of Cc.nlr;il Anicric;~.Thr: Escluipula~dccl:tr.iiion affirnis th:ii the Contadora
proccss c,on.rtiiuieï "ihc bcsi i,chiclc ;i\,:iil:ihlctu Cenir;il r\nicriJ;itr.in
order to achieve r>e;iceand democracv and reduce oolitical tensions". In an-
oihcr of ils sccrions. ihc IJcclai'aiioii exprcs\c> thiiillof 'the (iai\.crnnicnls

<>fCeiitrnl ,\nicric;i\>sign ihc Act i~fCi>ni..+dornior Pe:icc ;~niiCc>-opcr;itii>ii
IIICcnir:il Anicric;,. iiiih thc inir.n,>iiullv c<im..l\i-ra.itli;IIIthc ci>mniii.
ments and procedures containcd therein".
We analysed, also, the advances and conclusions made in the latest meeting
held between the plenipotcntiaries of the Central American nations and the
Vice-Ministers of the Contadora Group. At that lime. we indicated that it was
essential to reach a definitivc undcrstanding on the only matters still pending
agreement in the Contadora Act: that is, the limitation of the arms race, and
the suspension and regulation of international military manŒuvres.We proved
that this objective could not he wholly achieved.
The meetings of Plenipotentiaries have permitted the statement in depth
and in al1their magnitude of the premises and fundamentals from which the

fivecountries work. in this w;iy,we have arrive* al the conclusion that on thesc
bases il is possible tciarrive at a conciliation of intcrests, bringing together the
points of coincidence contained in the different proposais.
We noted with intcrest that the Plenipotentiaries of the Central Americaii ANNEXES TO THECOUNTER-MEMORIAL 409

couniries. afier recoenizine the imoossibiliiv of sirnine the C- -adora Act on
the aereed date. com>unirated to iheir resoective eo\,ernments their intention
~ - ~D ~ ~ ~ ~~~~.~ u
to coniinuc ilur ncgoti.iting proccss and thili lhc Group of ConI;~~Ior:\ih<luIJ
ioniinuc iulfilline II> i:iA <if.iitivc nicdi;itioii in sc;irsh of fcn\il>li':inJ bal;iiiccd
aereements for il oarties directlv or indirectlv involved

\\le. ihc h4ini>tA\ i,i ~orci&n.i\lf:iir.r iif th; Ci~ni;iJorli (iroup. 1;ikiiiginii,
consiJcr:tiioii iIic<s prcccdciii\. hiive somc iu ihc iollou,inr:~i>iiclu~i<~n w\.urc
in ilic hc1ir.fth:ii ihc! \ilIIhc sh.irc-dhv the Gi~i.ernmcni* 01 Cciitr;il am cri^.:,.
in the first place, iLresponse to the positions formulated in the Esquipulas

Dcclaration, we state once again the determination of the Governments of the
Conladora nations to eo on offerinr our pzarticipationin this diplomatic nego-
tiaiing process which kpresents th: hopis of articulziting an eminently sin
American political action. We consider that ii is necessary, at the same lime, to

clczirlydefine the prerequisites of this ncgotiation and the framework within
which it should be conducted in order to attain the high aims which we have
indicaied. Therefore, the countries of the Contadora Group and those of the

Support Group, have considered il opportune to issue a declaration in which
we~nl~ ~ ~~~ ~0 the~~~uuestions. as well as to the obstacles in. and oersoective . .
the pence process as a whole.
Today we formally deliver that which. in the opinion of the Contadora

Grouo. constitutes the final draft of the Aci of Contadora for Peace and Co-
operition in Central America. The tex1 incorporates the essential political
commitments related to the substantive aspects. Once this question is resolved.
WC propose to proceed immediatcly Io an6lher phase of the negoiiations. refer-

~ ~0~~~~matters ~ ~an ooerational character and which will refer mainlv to the
establishment of the vérification and Control Commission.
With the outline established ;ibove. we have draftcd a balanced and fair
lext, from the point of view of al1parties. As far as the topic ofthe control and

reduction of the arms race is concerned, in our opinion there is validity in
sonie of the criteria put forward by thc Plcnipoten1i:irics. In the firsl place, it
is nccessarv to formulate as soon as oossiblc an inventorv of the actuallv ex-
isiiiig armjments in the countries ofihe region and suitable for reduction or

elimination. To this list it is necessary in apply ;i factorization tablc bascd on
cuuivalent values of technolonical capacily ind destructive oower

criterion of balance and~reciorocitv on othcr equally important topics in the
~re~ ~f~reeional sccuritv
Other questions considered. such as pcnding matlers for agreement. are of

a different nature. It will be possible to iake them up systematicallv Io the
cxtcnt that ihe commitments Fclated to the suhsiantiai wirts of the Act have
been defined and accepted. For examplc. beforc agreeing upon the system of
verification and ci~ntrol. it is necessary to dcfinc what is to be verified and

controlled. The oropo. . Statute. althounh it mav need completion and re-
iincmcnt. I<iqic;ill)hclone, ti,Ili< :arc.<g,f rcqul;iiion> In il.I;8icrre\,i\ion .LIIJ
ncgi>ii.iti<,n.the Si:iiiitc sht,iilil hc ci~nsiJcrcd ;is p;iit ihc ..\si: ;ind in ni,
:;IW chn IIhc pl:8ccdln ,~ppt~~bli~ tn Iihc centr;~ltlicnic~cd ihc rclc\anl ch:il>-

ter. which has-alrcadv b&n aereed upon. It is necess;irv to define as well the
ni,rnis <a,iiiliinc.lin ihc fin:il ;~i~~<~sit;~ ii,I in thc c.>;rcyx,ndinr: piot~~ci~l
IIIp:ir:ill~l ctr ~,>IIII;,~.tic,ns%\', pr,!pchc 1,) ,l,irl the nccc\\:#r! c~~n~uIt:tl~t~~i~
isir tlic .iitcr:iciiien<,filic iiir~ili:iiii~iiii,r iiiiplciiii'ni:it~~~.~J~ cr:ilu.>ii~ina.hi<h

the Act foresees. as well as resolve the questions rclated to the financing of. and
headquartcrs of. the corresponding organization.410 BORDER AND TRANSBORDER ARMED ACTIONS

Amone the matters tabled. there exists one which merits soecial consi-
dcr;ition: ihc niun1:ni of cilIr!. I~I~Iopcriilion UI ihc cuniniitnlcnis in ihc Act.
'l'hr<iugtisuttlic iicgoti;iting procesr. wc have trird ciut ihc mosi \,ciricdforniu-
lac in order to achTevean~icccptable solution, based upon international law,

cxpcricnce and practice. 11has no1 yet been possible to find a satislactory
formula. One possibility is that the entry into operation of thç iigrcements
and commitments of the Act should occur when the five Central American
Governments have ratificd il. on the hasis of the orocedures established in
their respective interna1 legislition. The Central Amkrican Governments have
offered to ask the leaislativc powers of their countries no1 10 frustrate the
eflorts to achieve peaG and CO-operationin the Central American lsthmus that
WC have supportedand maintained together in the las1three and a half years.

The definition of this topic in terms already mentioned. inevitably obliges
us to re-examine other aspects of the Act itself. On previous formulae and in
order to secure the required simultancity of the agreements. part of the
preparation for ils execution was 10 take place between the moment of ils
si-.ine. and that of ratification of the corresoondine leea. instrument. In the
prcicnt circum\t;iii~~r. ili.;nr~ccs%.ir!1.,l:iii I~LICprcp;IrallOns 1.)c\<lIv~.In il
difiercnt fr.iiiiciiork. ihii~ugh spcciiic Iiprc,ciiiciitor ihc e\~.cuti\c po\r<rr ,ii
Ihc Ccnlr;ll Anicrican couiitric~. \\'c ,ire in ni1diiuht th21 tlii~.irrcr.mcnl uill

become reality, thus reflecting a political will expressed in so mGy occasions.
On this assumption. an attempt will be made to create the mechanisms of
verificalion in the matter of sccurity and control. that can begin 10 function
provisionally. If these mechanisms cannot be integrated in the short run. the
Central American Governments and those of the Contadora Group could
take in hand this provisional procedurc and carry out the tasks required by
such preparations.
In this case, a distinction becomes necessary. A considerable part of the

agreements registered in the section on security in the Act. such as the prohi-
bition of support to irrcgular forces and to acts of subversion, terrorism, or
sabotaee. are orincioles of international law which onlv need to bc underlined
or r.it18c~ l'AL! h~:vc\;tlid11\ and .~clu;~liiy ~~~I~~C~I~C~III,> ~t <\ha! ihc Act
itbclldcicrniini.~.'lli~.%ientcrn.iiic~n:ilohIi&.îti<iiiciciunir! c.in cliidc and thcir
enforcement can no1 be subiect to oaÏticular circumsiances. Additionallv.
their explicit observ;ition would creatk a climate of confidence indispensabie
10rcverse the present warlike tendencies and contrihute to the pacification of

the reaion.
In ihc nc~<>ii;itinqfr;imcuork wc praipi,,c. ;ictiuns rcl;itcd Io the prcp:gr.iiion
lor thc r;ipiJ cxccutiain of ihc :sgrccnicnis on thi. iiiaitcr <if>ccurity.would t;ikc
pl;iccaltcr sirnin): the ,\ci. As fnr ;isth<quc>ii<in <if.irm.<nicni:+nd :iha11 icthe
arms race is-concerned. for examole. thé duration and terms of control and
reduction will be established, acco;ding to the criteria presented in the substan-
tive area 01 the Act. As an obligatory point of reference, the registration of
arms inventories and arms ocrs~nnclwauld be comoulsorv. The Eame would
:ipply 1~8ihc <ihli<iti<>nJscfinc.J in ternis cri,t;t+,r.tnJ timci.ihl~\ in IIicrcLIiiiii

iin iczurit!. th.it w,,ulil h.ivrIO hc d-tcrmincd. :ntthe \;imc st;igc. uitli siniil;ir
procedures to those indicated above.
The formulae and the scheme that we orooose eather the orooosals of
the dilferent Central American ~ovcrnments ln an iffort to sykthbsize and
compatihalize them. Although they can not reflect integrally ail thc points of
view of anv oarticular countrv. thev do corresoond 1; the essentiais of the
basic concérns contained in each proposal.
We have no doubt that we can count upon the favourable answer of the ANNEXES TOTHECOUNTER-MEMORIAL 411

Ccntral American Governments. In that way. our diplornatic effort will be

supported by solid bases and nui only its continuity will be guaranteed, but
also the required depth thatilrequires. Above all,WC will give a demonstra-
tion of the capacity for political harmony, efficacy, unity and cohesion that, as
genuine Latin Americans. we are obliged Io produce in face of the difficulties
and changes oi our timcs.
We maintain thc conviction with which we worked indefatigably during
three ycars and a half in favour of a statuie for peace in Central Americzi,which
today we deliver to the fivc Govcrnments in the region. We trust that you, as
prime trustees for Peace and Co-opcration in the region, will take the decisions
required Io eniorce the Act of Contadora.

We take this opportunity to reiterate tu you. our assurance of our consi-
deration and friendship.

Dr. Augusto RAMIREZOCAMPO, Lic. Bernardo SEPULVEDAAMOR.
Minister of Foreign Aifairs Minister of Foreign Affairs
of Colombia. of Mcxico.

Dr. Jorge ABAD~SARIAS. Dr. Simon ALBERTOCONSALVI,

Minister of Forcign Affairs Minisier of Foreign Affairs
of Panama. of Venezuela.412 BORDERANDTRANSBORDER ARMED ACTIONS

Annex 18

NICARACOAN RESPONSETOCONTADORA1 , 7JUNE 1986

Ministry of Foreign Affairs,
Managua. Nicaragua.

Managua. June 17th 1986

Dear Minister,

1 have the pleasure to address rnyself to Your Excellency, with reference
to thc draft of the Contadora Act for Peacc and Co-operation in Ccntral
America, submilted to the Chancellors of Central America on the 7th of Junç
during the I;iiçst ministerial meeting, together with the Message of Panama
and the Explanatory Note on the draft of the Act. These thrçc iniportaiit
documents renresent the nosition of both the Contadora Groun and Sunnort
, ,
Cir,wp <inille iica<iii;itingpr,r.'rs IIICcnir:il Aiiicriili.
UnJcr thc prcscnt circuin~tni~cc~. wc htlicvc il liitinltii rcnicnihcr th;ii
ihc Groun (II(.<intailor.i \uhmilicd 10 ihc Cenir,il r\nicricïn ci,untrici 011 thc
7th of seitember 1954.a revised version of the Act. asserting then thai il was
"the result of an intense process of consultationsand alter an ample exchangc
of points of vicw with al1the Central American Governments".
In adinlomatic not~ ~ ~ ~ Seotemher 21st 1984.ihe Government of Nicara-
gua inforhed the Contadora cointries of ils decision "to accept in ils iotality

and immediatelv sinn, without any kind of modification, the Revised Act of the
7th of Seplemhkr"~
After this acceptance by Nicaragua was madc public, the North Amcrican
Governmcnt embarked in a strenuous campaign designed 10impede the sign-
ing of this rcgional agreement, thus achieving what they themselves called
"The Effective Blockade" of the draft proposed by Ihe Contadora Act. The
National Security Council document of October 30th 1984, defincs this
stratrgy of the North Arnerican Governnient to boycott Contadora.
As a consequence of the rejection and North American pressures, although

the Contadora Group had already officially concluded the negotiations of the
Act, il was decided to re-open this negotiating process which nowculminates in
its new draft of the Act, submitted on June 7th 1986.
The Contadora Ciroup in ils note of June 6th. points out that as 10 the
present situation. "there prevail in Central Amcrica. together with somc posi-
tive sians. situations that imo.v.a considerable deterioration of the conflict".
Thc Korih ,\nicrl;;in (i~~v~rnnicnt, i:irfrcttticc~ll.ih~~r:~iiinng illc crc,#iC~In
<onJ~tic,nsthlt LS\,L.C pc.i<c cfl~lrts.Ilah1nkn>1[1d 11%ttiiI~t.~ym:in<<ii\rc<ln

Ili>niliir;i\ .,I<iiicih~.h,irilcr uiih Si;.ir:irru:,. :ind ciii<iin<rc:isc115hclli-
cose nolicies and interventions aeainst our countrv. This is demonstrated hv ANNEXES TO THE COUNTER-MEMORIAL 413

of Justice. and aitcmpting Io jeopardize the Unitcd States Congress itself with
these actions in violation of US law.
All this demonstrates the unvarying conduct of the United States Govern-
ment in continuing with ils terrorist policy and the sabotage of the negotia-
ting efforts pursuïd by Contadora.
Likewise, thc USA continues to usç the territory <ifneighbouring coun-
tries as a sanctuary and base of aggression against Nicaragua, without indicn-
ting by any actions or signs that this might cease. On the contrary, somc Ccn-
tral American Govcrnments try to justify their toler~~nccof and support for
this kind of practicc.

It is for that rcason that Nicaragua shares thesc objectives with the Chan-
cellor~ of Argentina. Brazil. Colombia. Mexico. Panama, Peru. Uruguay and
Venezuela in thc Message of Panama, that
"it would be illusory to believe that the compiling alone of the draft of

a treaty will solvc the crisis. It would also be ncccssary to advance to-
wards the creation of the right conditions for the signing of the Pcace
Treaty itsclf."

Based on whzit has been said previously. after a thorough analysis of the
last draftof the Act. <ifthe Message of Panama and of the Explanatory Notc
(al1essential docuniçnts for the correct interprct:itioii of thc negotiating pro-
cess and that of ils future stages) the Government <ifNicaragua announces
the following:

Firsl T:hat Nic~iraguahas aluays been ready to sign the Peace Act within
the spirit of the Oiraballeda Message. and considers that the 7th of June 1986
Act. presented formally to the Central American couniries hy the Contadora
Group. constitutcs ihc only instrument "capable of producing a quick and
efficient conclusion of the negotiating process". in order to achieve peace [or
Central Anierica.

Second: Considcring the Explanatory Notc from the Contadora Group dated
June the6th wherc it is orooosed that "il is neccssarv Io comoilc as auicklv as
possible an invcntory 2 ali existing weapons in the countries of t6e rciion
susceptible ta reduction or eliniination" and in agrecnicnt with the list of
militarv matters that Nicaragua considers subiçcito reduction. limitati<in.
regulaiion and climination witliin the frzimcwork of the negotiatioiis, the
Government of Nicaragua is prepared to delivcr 10 Contadora an inventory

of the following niilitary mattcrsi
1. All types of niilitary acroplanes.
2. All types of niilitary helicopters.
3. Military aerodromcs.

4. Battle tanks.
5. Heavy mortars of more than 120 mm
6. Self-propclled anti-aircraft cannon.
7. Multiple rockct launchers.
8. Artillc~~,of more than 160rnm.
9. Self-propçllcd ;irtillcry.
10. Surface to surfacc rocket launchers on naval vcsscls
11. All military vcssels.
12. 1nternation;il military manŒuvres
13. Foreign military bases.
14. Foreign military advisors.414 BORDER AND TRANSBORDER ARMED ACîIONS

Third: In line with the Explanatory Note of Contadora, the Government
of Nicaragua is elaborating a Factorization Tahlc of thc above list of military

mallers.
Foiirrh: In conformity with the Message of Panama, the Government of
Nicaraeua aooeals to the countries of the Contadora Groun to take the neces-
sary seps tO"'es1ablish appropriate conditions for the signing of the Peace
Act". for which it is urgent to promote dialogue between the United States and
Nicaraauan Governmënts. su~nort the creation of Mixed Commissions for the
solutioi of frontier problems: Eavourdialogue and to agree upon pacts of non-
aggrcssion between the Central American Governments.

Fiflh: We also comply with the Messagc of Panama, in that to go forward in
the Process of Contadora as a final Peace obiective. it is imnerativc to accent
three kinds of obligations:

(a) To prevent the use of the national territory for aggression against another
country by military or logistic support to irregular forces or subversive
groups.
(h) No country mus1 form membership of any military or political alliance
that directly or indirectly threatens the peace and the security of the re-
gion by plunging il in10 the East-West conflict.
(c) That no super power militarily or logistically support the irregular forces
or subversive grilups that act or could act in the countries of the region.
or that uses or tlireatens to use force as a means to overthrow a govern-
ment in the area.

In this way Nicaragua is taking fresh steps in favour of the peace and stabi-
lity in the Central American region.
Finally, Minister, 1convey to you the sincere gratitude of the people and
Government of Nicaragua for those efforts of the Contadora and Support
Groups towards peacc and sccurity in our long-suffering Central American
region, ratifying once more, our total backing to the Latin Americanist action
of the Contadora and Support Groups.
WCarc convinced that the unitv of the Latin American oeoolcs can lame
. .
ihosc rcgrcsivr. forc~.iih:ai Ir" io beny our 5:tsrcd riph13self-Jcicrni~naii<>n
and indcpendcncc. and ih:it couniiris upon ihc polit~c.~lwill <ifoiher Ccnir~l
Anicricait couniries .ind tha<ifthe C;i,vcrnnicnt<ifihc.Uniicd States.IIi11Ihe
possible to successfully conclude the negotiating procçss of Contadora.
1convey to you, Minislcr, this tcstimony of my highest considcration and
personal regard.

(Signed) Miguel ~'ESCOTOBROCKMANN,
Ministcr of Foreign Aflairs.

The Right Honorable Enrique Iglesias,
Minister of Foreign Affairs of the Republic of Uruguay. ANNEXES TO THECOUNTER-MEMORIAL 415

Annex 19

RESPONSE OFHONDURAS TOCONTADORA1 . 3JUNE1986'

/Sp<inishrextnor reproducrdl

(Translufion)

NOTEFROMTHEPERMANENT REPRESENTATIVA EMBASSADOO RFHONOURAS
ANNEXING THE PRESSCOMMUNIQUE RELEASED BY lllS GOVERNMENT ON
JUNE13'1986. INRELATION 70 THEJOINTMEETING OPMtNlSTERS OF FOREIGN
AFFAIRSIN PANAMA

June 16. 1986.

Mr. President:

1have the honor to address Your Excellency in order to inform you and.
through your offices, the St;itcs Members of the Permanent Council, of the
Press Communiqué No. 038-86of Junc 13.1986,relcased hy the Government
of Honduras in relation to the Joint Meeting of Ministcrs of Foreign Affairs
held in Panama City onJune 6 last.

1avail myself of this opportunity in order to reiteratc to Your Excellency
the assurances of my highest consideration.

(Signe</Hernan ANTONIOBER&IUDEZ.

Ambassador, Permanent Representative.

His Excellency ,Mr.Fernando Andrade Diaz-Duran,
President of the Permanent Council,
Organization of American Statcs.
Washington. D.C.

PRESSCOMMUNIQUN ÉO.038-86

The Secretariat of Foreien K~lations. after analvsinr the documents that
were given to the ~overnmënt of Honduras by the'cozadorCroup, in the
Joint Meeting of Ministers of Foreign Affairs.held in Panama City on June 6
last, makes the following announcement for the national opinion:

1. The last project for an instrument ("acta") proposed by Contadora does
not constitute. in the opinion of the Government of Honduras. a document
that establishes reasonable and sufficientobligations for guaranteeing ils se-
curity.

Sec II. Corresparidenc44.51.71,7and 74.416 BORDER AND TRANSBORDER ARMED ACTIONS

2. The Contadora Group stated in that meeting thzitthe project in reference
exhaustcd its niediation efforts with relation to the suhstantive elements of the
"act~i",but Ihat notwithstanding they were available for collaborating in the
negotiation of the operative and practical elements of the "acta".
3. The Government of Honduras reiterates ils willingness to continue cx-
ploring new formulas that effectively guarantee the legitimate interests of al1
the Statesand to contribute in ;inyother efforts,destined to achieving the inter-
na1 pacification and national reconciliation of certain States. the maintenance
of peace and the consolidation of democracy in Central America.

Tegucigalpa, D.C.. June 13.1986.
Information and Press Office,
Secretariat of Foreign Relations. ANNEXES TOTHECOUNTEK-MEMORIAL 417

Annex 20

LEITEROFHONDUKAN FOREIGNMINISTERCONTRERAS

[Spnnish rerr rlotreprorlircedl

MlNlSTRYOFFORlilGNAFFAlRS

OFTHEREPUBI.ICOF HONDURAS

Ref. No. 249186-DSM

Tegucigalpa, D.C..
21 Junc 1986.

Dear Ministers and Friends.

1 have the honour to acknowledge receipt of your kind letter dated June
the 6th. in which you informed me that on that date the Chancellors of

Colombia. Mexico. Panama and Venezuela had met in Panama City in order
to conclude the negotiations of the Contadora Act for Peace and Co-operation
in Central America; and that they shared their conclusions with the Chancel-
lors of Argentina, Brazil, Peru and Uruguay.
On the uccesion of the joini. meeting of the Chancellors of Contadora.
of thc support Group and of Central Amcrica. held in Panama oit June
the 6th 1986, the Contadora Group form;illy handed over tu the Centnil
American Chancellors what oii its own judgment. should constitute the
last draft of the Act of Contadora for Peace and Co-operation for Central
America.

As announced on ihat solemn session. I am pleased today to be iible Io
offer you the answer of the Governnient of Honduras. based on the calm
and fraternal study of the docunients given to me, that is to say, the speech of
the Chancellor of Panama. the letter from the Contadora Chancellors to the
Central American Chancellors. draft of the Act of Contadora and thc Mcs-
sage of Panama.
1reiterate to al1and each of you. the rcspect of the Government of Hondu-
ras. for the enormous collective effort you have demonstrated, distinguishcd
by the noblesi of political wills, investmcnt of human and matcrial resources,

in thal fratern;il eagerness to achieve through political negotiation, a Icg;il
outline capable of guaranteeing a sustaincd dcmocratic peace inside the Cen-
tral American States and between the States of the region.
Despiie the persistent effort to achieve the desired objectives. 1 fiilfimy
dutv to inform vou. as did the Honduran Chancellerv in its Statement of
l?ih iifthis m(inih. 1h:ii. I'he Iari Jr:iit of ihc ,\el~r<;l~~i;hv~ C<ini:idor:i.
Joc5 net consiiiute. in thc ,,pinion <BIhc G~>$,crnmr.iio if Il<iiiJur;is;id<,r.u-
niciii ih;it c\i;tlilishcs rcii\~~:iiidsuificicnt aihli~liti10nyu.ir:inicr.11sjccu-
rit?''418 BORDER AND TRANSBORDER ARMED ACTIONS

In fact, on the subject of disarmament. that is. to the limitation. reduction
and the control of arms and military personnel, the Contadora proposal
defcrs to a later stage to the cominginto force of the Act, the negolialion of
the limits and agendas of arms reduction and military personnel. The position
of Honduras to this fundamental aspect of the Act, is that the obligations
relative to il. must be enacted with precision and clarity in the text itself of
the Act.
The system proposed by Contadora requests a negotiation on disarmament
at a later stage. that imolies uncertain results and that would brine about the

abolition of Gher cornmitments on the matter of securily. jeopürdizyng in lime,
the "rinciples of reciprocity and simultüneity that have prevailed dur in^ the
negotiation. 011 the ither hand, to accept a hazardous and uncertain situation
on the matter of disarmament, would be the same as to recognize and ratify a
situation that in fact already exists: the military supremacy of one of the Cen-
tral American States over the others.
I ;ilau w<,uldIikcicisi;iic. tlt~t ih~.Ci~ni;id<ir;ikoj~cl duis nui rcflcci ;ide-
quaicl!. the criicri;~acscpicrl hy iuur (:ciitr.il Amcricm (ic8i.crnmciitr in rcl:i-
titin10 ihc.uie of ihr. '11nsizTshlc i~ft;ictori in <,rclct<icstnhlish ihc .M.lxi-
mum Levels of Military Developrnent" and, on the contrary, attempts to

apply subjective critt:ria of diflicult multilateral evaluations that wciuld make
impossible an agreement on limitation, reduction and control of armamcnt
and military personnel.
1would also like to point out that in Chapter III a new section 23 tries to
reintroduce points which were already discarded in negotiation with pleni-
potentiaries. because they affected constitutional arrangements in four coun-
t~i-~.
On ihc ni;ittc.r (ifinilii;iry iiian<ru\,rc\. I uh\cr,,c :in un:iccr.pi:~hlcreiurn tu
th:ii vcrriiinor Ci,nt:idi,r;<if'Iovcnihcr I'JX5.1h:iiiniplicd crroneouslt inlu .I
supposcd equivalence between military manmuvres, armamcnts and military
development.

As 1already stated orally at Ourjoint meeting in Panama. theGovernment
of Honduras notes what theContadora Grouo has exoressed in the sense that
the las1draft of the Act exhausts its action interc&sion on the substantive
aspects of the Act but. that the Group would remain ready to collaborate in
the negotiation of ils operative and practical aspects. In the same way. we
note the fraternal intention that the negotiation of al1practical and operative
aspects of the Acta be concluded before the signing of such an instrument.
Howevcr. as it is rightly pointed out by the honorable Ministers in their no-
tice of 6th of lune Itist, it would only be possible to systematically approach
these matters in so far as the agrcement dealing with the suhstantive aspects
of the Act, would have been clearly established and accepted.

Despite the above-mentioned difficulties. 1 could not finish without
making clear, once more. the deep acknowledgment of the Government
of Honduras for the enormous and persevering efforts achieved by the
Contadora Group to attain a long lasting Peace in Central America. 1 can
ccrtify to the exhausting working days you kcpt over a period of more than
three years, proving at al1 limes, such a physical strength and such a conci-
liatory intellectual will, worthy of the noble cause that brought them into
existence. If Contadora has not obtained the total success we wish. il has
been due to causes no1 attributed to thc Group. History will record these
efforts as the most bcautiful proof of American solidarity. more than an
intangible ideal. il is a real fact, that exists and brightens the future of our

continent. ANNEXES TOTHECOUNTER-MEMOKIAL 419

With the confidence that Honduras will continue to pariicipate in a con-
structive way in al1that would tend to encourage Pcace in the region, 1heg
you to accept the rcpeated testimony of my highest regard and personal res-
pect.

(Sigrled) Carlos1-6~E7.CONTRERAS,
Secretary for Foreign Affairs.

The Right Honurable Dr. Augusto Ramirc7.Ocampo.
Minister of Foreign Affairs of Colombia.

The Right Honorable Lic. Bernardo Sepulveda Amor.
Minisier of Foreign Affairs of Mexico.

The Right Honorable Dr. Jorge Abadia Arias.
Minister of Forcign Affairs of Panama.

The Right Honorable Dr. Simon Alberta Consÿlvi,
Minister of Forcign Affairs of Venezuela.420 BORDER AND TRANSBORDER ARMED ACTIONS

Annex21

"FLIGIICREW LOG TRIP AND EXPENSERECORD" OBTAINED HYGOVERN-
MENT OF NlCARAClJAl'ROMC-123 PLANETHAT WAS SHOTDOWN OVER
NICARAGUA ON 5 OCTOBER 1986AND WIIOSE CREW INCLUDED EUGENE
HASENFUS ANNEXES 1'0THECOUNTER-MEMORIAL 421

Annex 22

NOTE FROMTIiE GOVERNMENT OF NICARAGUATO THE ORCANlZATlON
OF AMERICANS'I'AI'ES CONCERNINCHONDURAS'S"NEW DECLARATION"

[Sp~rnishrerr nor repro<li<ce<l/

(Trnnslarion)

May 18. 1987.

Excellency:
1 have the honor to address Your Excellency on thc occasion of communi-
catine the letter diited Mav 15. 1987. which thc Ministcr of the Exterior of

thr. IZc~~tihliCI(I\ic.ir.i$uii >inJi119IIIrr.l:iiiitii!'.,Urc<,iiiiiiuiiisai<ii
Junc 31, 1~180 .~;.C~LII~Iclier D~\I-?ilf~ %D\1:1\ 26. l'IS6<> ihc, \I~iil\lr!
<if1:orcigii Kcl.ititiof th^ K~.pul>liiiiHondur;is.

Please accepi. Excellency, the assurances of my highest consideration.

(Signed) Carlos TUNNERMA BN..
Ambassador.

His Excellency Mr. Joiio Clemente Baena Soares,
Secretary Gcncral.
Organization of American States.
Washington. D.C.

Mnnagua. May 15. 1987

Mr. Secretary General:

1have ihc honor to addrcss Your Excellency with rcfercnce to your letier
of June 30. 1986. in which you communicate document DSM-206186of May
26, 1986.of the .Ministryof Foreign Relations of Honduras. informing of the
"modifications introduced to the acceptance of the Jurisdiction of the Inter-
national Court of .Justice, since the contcnts of said declaration of modifica-
tion are equally applicable to article XXXl of thc American Treaty on Pacific

Settlement".
With rclation to this matter, 1inform thc Secretary General of the follow-
ing:
1. Honduras ratificd the American Treaty on PacificSettlement on February

7. 1950.that is to sny, thirty-seveii years ago wiihout niaking any reservütions.

'See II. Correspondence.Nos.44.51.71.73 and 74.422 BORDER AND TRANSBORDER ARMEU ACTIONS

2. In accordance with the Law of Treaiics, States may only make reserva-
lions at the momeni of suhscription, ratification or adherence to an interna-
tional instrument.
3. Article XXXl of the Pact of Bogoti establishes a fundamenial convïn-
tional obligation by which al1the States party Io the American Treaty of Pa-

cific Settlement recoanize. in relation tu the other States Dartv. and for the
duration of the ireal;, as compulsory. ipso fucro and withgut &y conditions.
the jurisdiction of the International Court of Justice.
4. The attempt by Honduras of introducing a reservation to an article ol
the Pact of BogoiA. that is, to the Pact of BogotA.is inadmissible and ineffec-
tive.
5. Consequenily, Nicaragua considers inadmissible the modification pre-
sented by Honduras, which does not have any legal validity and conslitutes a
grave violation of the American Trcaty on Pscific Settlement.

At the same lime as requesting that Your Excellency make known the
position of Nicaragua Io the other Statcs members of the Organization of
American Stales. 1 Lake this opportunity in reiterating the assurancïs of my
highest consideration.

(Signed) Miguel d'EsCo~o BROCKMANN.

Ministcr of the Exterior.

His Excellency Mr. Joao Baena Soares.
Secretary General,
Organization of American States. ANNEXES 1'0 THE COUNTER-.MEMORIAL 423

Annex 23

OPINION OF THE INTER-AMBRICAN JURIDICALCOMMITI'EE ON THE AME-

Septembcr 3, 1985.

Excellency:

1have the honor 10 convcy io Your Excellency the opinion of the Inter-
American Juridical Commitiee on the American Treaty on Pacific Settle-
ment (Pact of Bogoti) as well as the Report of the Rapporteur for this topic

and the papers some of the memhers of the Committee prepared 10explain
their votes on this topic.
That opinion wns transmittcd to me with a note from the Chairman of the
Committee,dated August 29, 1985.Therein he requesis ihat the ducunient be
transmitted to thç Permanent Council so that it may considcr il via ils Com-
mittee on Juridical and Political Affairs, at the meetings thai thnt Committee
will hold on Thursday, August 5, and Friday. Augusi 6.with the Chairman of

the Inter-American Juridical Conimittee in attendance.
Accept, Excellency, the rcncwed assurances of my highesi consideration.

Joao Clemente BABNASOARES,

Secretary General.

His E~cclleiicy ,\iiih;is\:aJ<ir 1';ibli)A1:iuricioAlvcrguc.
C'hairiiiat<iIthc Prriii:in~.niCouncil

of the Organization of American States.
Washington, D.C.

Inter-American Juridical Committce,
Rio de Janeiro.
Brazil.

CJ1/0/87 Rio de Janeiro. August 29, 1985,

My dear Mr. Secretary General:

1have the honor to inform vou that in resDonse to a decision inken bv the
Permanent Council on ~u~usi7 of this year, 10 request the hier-AmeXcan
Juridical Committee to examine the American Trcaty on Pacific Settlement
(Pact of BoeA.i). takine in10 account the reservationi made hy the sianatory
Si;iic\:i\ucll :orthe re;ison\ ih.11\(,nie St;<tc>miphi h3i.e for ntii raiifIIIII
ordcr tiidcicrniin; \rhcihcr :inicii~liii:nI\nccIcI)cm:& 10 ihnl in\ir~riicnIci

L.nburc 11%ri:ihilii~.th; Coiiimiticc ioiiiplr.il* niirkIoJ:i!. uilh Ilic <ipiiiit?ii424 BORDER AND TRANSBORDER ARMED ACTIONS

that 1have the plcastire to attach hereto. 1am also sending you the Report that

1submitted to the Committee as Rapporteur for this topic, as wellas the Expla-
nations of Votes provided by some of thç mcmbers of the Committec: Dr.
Roberto MacLcan Ugarteche. Dr. Luis Herrera Marcano and Dr. Manuel A.
Vieira.
The Inter-American Juridical Committee devoted a significant portion of
ils August session to this undertaking. It made it a priority. in view of the fact
that the entire Organization is now committcd to a process of amending the
Charter of the OAS and other inter-American instruments, including the

American Treaty on Pacific Settlement itself.
1would be most grateful if you would be kind enough to transmit the docu-
mentation in questioii tothe Permanent Council and. through it, to the govern-
ments of the member States,and order that it be included among the Commit-
tee's other documcnls pertaining 10this session, which will bc publishcd in the
volume "lnforines y Recomendaciones del Comité Juridico Interaméricano"
for 1985.

Sincerely.
Galo LEORO F..

Chairman. Inter-Anierican Juridical Committee.

His Excellency Ambassador Joao Clemente Baena Soares.
Secretary General,
Organizalion of American States,
Washington. D.C.

Inter-American Juridical Committee,
Rio de Janeiro.
Brazil.

CJIIRES-11-13/1985

OPINION

Bearing in mind the special interest that the Organization of American
States has in conducting studies of the major intcr-American legal instru-
ments with a view to their amendment. as statcd in resolution AGiRES.745
IXIV-II h4).:~doptecl hv 111~.;t,ncr:l:\~~:iiiItly{IIlhc Ur\S IIIBr,i>ili:t(n Y,>-
\:111h:r <~f1984.:iiiJ ln rc>pun>e 1,)tl~ec\prc>> rcquc\t 111~dc #$(ill),the I1:r-
iiiaiicnt ('ouneil 01 the Org.inif:itiun. ihc Inter-,Iiiicri~aii Juridi~.:ilCoiiimit-

Iec unJcrIouk an chaminntioii of thc ;\iiicric:in l're.ii! on I';rcificSciilcmcni
(I';~ctOI Bog(>i!~lt:iking iiiio ïr~.<,unith; rcseri.iti<ins ni;i~Iy ihc \igi:iiory
Siaie>.is wcll as ihc rc;isons (hot sonie niemhcr S~atc\niight htii'eii>rnot r.iti- ANNEXES TO THE COUNTER-MEMORIAL 425

fying it. so as to determine whether amcndments need to be made to that in-
strument io ensure its viability. The tcxt itself also dovetails with what the

Commiticc itself sueeested in ils resoluiion of August 21. 1984. tiiled ''A
study on the proccd~~es provided in thc Ch;irter of Ïhe Organization fur the
peaccful scttlement of disputes and furthcr sicps that might be taken 10 pro-
mute, modernize, or expand sucti proccdures".~
The Chziirman of the Committee convcycd the request verbally. tle h;id
been present nt a mecting held 11ythe Committee on Juridical and Pi~liiical
Affairs of the Permanent Council in laie Julv. where the idea had taken
shape Later. ihraiush ;c:ihlc J:,icJ AU~LSI16. I9);i. lhc Ch:iirni:in i~fihe Pcr-

m;incni Couneil of ihc O,\S ioiifirnicd fiir Ihc Ci~mmiitcc ih;it :aiils iiiccting
,if,\urujt 7. ~h;iihc>dvh;d in cffr.ct dccidcrl in iiiakc il131rciiur.\i the Intcr-
~melcan Juridical ~ommittee.
At ils meeting of August 5. the Committee appointed Ambassador Galo
Leoro F. as Rappi~rtcur for the subjeci. He made various statemcnts a1 a
numbcr of nieetings, analysing in detail the Pact of Bogoti and its technical
problems and other problems, examining how these bear upon its vi;ibility.
At the meciing hcld on August 20, hc ;ilsu prcsïntcd a report, datcd August

19 (CJI-SOI1 1,attached hereto) containing ;in analysis of the various aspects
of the Pact which. in his view, are quesiionable and point up problcnis with
respect tu the applicability of the Pact if the parties had to resort to ils procc-
dures. The Commitiee decided to use the Kcoort of the Raooorteur as a . .
working p:ipcr .iiiJtaicontinus wiili ihe nn;il!\ic <ifthe Psrt. whiili bcgin on
aiid ci,niinuc<l ;ilIIic mc~.ting\hclrl oii,\u$uri h. 8, Ili.12. 13 15.20. 21. ??.
23.24.28 and 29.

II. REFORMOFTHE INTER-AMERICAN SYSTEM

At various points in time, the memher Statcs of the OAS have sought
reforms in the inter-American system.
The systcm developed within a legal framïwork cstablished by rcsolutions
passed by the International Confercnccs of Amcrican States. Many of the
declarations from ihose conferences contain principles that point up a con-
stant effortto surniount ~roblems. The most sienificant reform madc in the

system was the signing oithe Charter of thc OAS in 1948when an org;iniza-
lion that had developed over the course of several decades was contraciually
instituted. That cont;actual transformation was the climax of an essential un-
dertakine that beean with the Inter-American Treatv of Reci~rocai Assis-
tance, adOpted in Rio de Janeiro in 1947.and culminated with CheAmerican
Treatv on Pacific Settlement or "Pact of Bogoti" and the other invaluable
inter-Amcrican instruments that addrcss sociairiehts. human riehts. cconomic
reI:t~ia~ii;l1 on ~II~~I~~I~IIV,giiJ\iru<~ur.il<c;ilcih;,t \\;i\ti~t~~,upircccJcii~

,\fier 1945. ln nr~lcr 1,)\ilr\b\e Ille rcgia~n:ol ~~IcrrIlI;N1%) lw 1~1~11lulc ~tJ?n-
ir:icid.ill;iii.;iJ:ipt iIrelIO Ihc hi-hr.31inicrn.ititiii:il jl:inJ;iri,iIhc 1.niicJ
Nations .charter. '
Here in Rio de Janeiro in 1965. the Sccond Special Inter-American Con-
ference would begin efforts tu redirect ihc intcr-American system ioward
more ambitious go;ils for the econoniic and social development of ils Ameri-
can States. It would also adopt resolution XII1 tu "strengthen the capacity
of the Organization to give the member States effective aid in the peaccful

settlemeni of their disputes", giving the Council of the Organization the
necessary powers. The Protocol of Buenos Aires, signed in 1967as a result of ANNEXES TO 'THECOUNTER-MEMORIAL 427

ol peacc. In ils opinion of Scptember 8, 1971, the Committee said that the
best means tu strenythen the system would bc for those States that had not
vetratified the Pact-of Boeota iodo su
' The advisability of amking the Pact of Bogoth was raised at CEESl in
1973.Although no position materialized in this respect, CEESl decided that
the matter shsuld be examined on some future occàsion.
Today the Cornmittee has been entrusted with studying the Pact of
Bogota; the Committee had suggested that very thing in ils own opinion of
Augusl 21, 1984. The fundamental purposc would be to facilitatc a gencral
consideration of the measures that should bc taken to modernize the inter-
Amcrican system overall, with aview to strengthening it and endeavi~ring. by
every means possible, lu make inter-American CU-operation more elfective.
in this specific case in the field of peaceful settlement of disputes.

The Pncrof Bogorriand rlle 1nrr.r-AnrericntzTreoryof ReciprocalAssi.sfnnce
- I~lsrrirntenfor rheMoitircnn~iceof Pence

The Pact of Boeo-i and the Inter-American Treatv of Rcciorocal Assis-
tance are the instrumental means for carrying out the objectives set forth in
the Charter with respect to maintenance ol the peace. The first is the Oryani-
zation's response to thc need to settlc international disputes betweei ils
members peacefully: the second is a collective response to aggression and
other attempts against the territorial integrity, sovereignty and independence
ol the member States. under the terms and according to the characteristics
that those instruments establish for each one of their respective spheres of
action.
The factthat the Charter of the OAS makes reference to those two special
treaties. which differ in their nature and sohere of ao..ication but ;ire the
same in terms of purpose - that being the maintenance of peace -. naturally
prompts me to examine how they are applied. which is frequent and wide-
raneine in the case of the Rio Treatv. and non-existent in the case of the Pact
of ËoGta. The Rio Treaty has beenratificd by the vast majority of the mem-
ber States, while the Pact of Bogota has been ratified by an obvious minority.
Whilc the Rio Treaty was amended by the Protocol of San José, in 1975,the
Pact of Bogoti has remained unchanged.
Naturally, the most striking fact of al1 is that the Pact has never been
invoked by ils parties tu settle their disputes peacefully. If Honduras and
Nicaragua resorted tu ils procedures in 1957, it was only because the Perma-
nent Council, acting provision;illy as organ of consultation. had recom-
mcnded that measure and the two member States look their dispute to the
International Court of Justice to resolve the controversy over the 1906Award.
Thus, there has been no balance between the two fundamental sides of the
maintenance of peace within the OAS, those bcing collective securily and
peacelul settlement of disputes. In practicc, the Organization's main objec-
tive with respect to peaceful settlement of disputes has no1 been served. This
may be bccause resolution has been sought through Article 7 ol the Inter-
American Treaty of Reciprocal .4sdstance. which provides the following:

''ln the case of a conflict between two or more American States. with-
out oreiudice to the rieht of self-defense in conformitv with Article 51 of
the Charter of the ~nzed Nations, the High Contractfng Parties, meeting
in consultation, shallal1upon the contending States to suspend hostili-
tics and restore maticrs to'thesrnr~rqrrooni hellum, and shall tnke in428 HORDERANDTRANSBORDER ARMED ACTIONS

addition al1 other necessary measures Io reestahlish or maintain inter-
Americaii ocace and securitv ariilfi~rthe solirtion of the conflict bv oeace-
frrl nieans. 'The rejection of ihc Gcifying action wiil he cokidcrid'in the
determination of the aggressor and in the application of thc measures

which the consultative meeting may agree up-on."
Perhaps sevcral instances where the RioTreaty was invokcd can bc better
explained if one considers that the Orpanization did nat have an organ that,
atihe request of one of the oarties or in ils own initiative (as haooeied with

the 1nter:~merican Peace eommittee. hefore it was changed in'May 1956).
could recomniend to the contending States suitable measures or means for
finding a solution to their disputc.
Thus. undcr ccrtain circumstances. thc American States have had to invoke
the Inter-American Treaty of Reciprocal Assistance, an instrument whose
organ acts ai the request of one of the parties and, in certain cases, when con-
voked by the Chairman of the Permanent Council (Article 63 of the Charter).
Under Article 7. cited earlier, it is called upon Io play an important role in
achieving pacificatioii and even to finding a solution to the conflict via peaceful
means. Naturally. the best thing for the member States and for the inter-

American system wiiuld be for the methods of peaceful settlement to be as
effectiveas the Rio Treaty's methods, even more so if possible.
A dcsirc to achieve that oar.tv. ,r at least some balance in the use of the
twci mciins fur m:iini.linin,: pcticc uitliiii thc int:r-,\mcric;in ;!>idin. 1%\ih.ii
J<~ul>tIc>h\:,, [>rt~iiil>tctdhe ~iiciiihcrSiillIV Ir, tu dicr iho\c ,,>pcit~ 1)1ihc
fundamental instruments that. experience has shown. do no1 funciion or have
no1iuiiciioncd in ihr. p.isi Iiii1ic(,'ommiitc~~'j\uil$nicnt. the siiu:ali~,nnuicd in
the c:iw of ilie P3il of R<~got;hicild, iriic in thc c.i\c of lhc Or\S Charter:i\well.
since the t.irk :asriencd to the Pr.rm:incni Cuuiicil and l,? thc Inicr-Aniericnn
Committee on ~ea&ful Settlement. undcr Articles 82 through 90. isjust as dif-

ficult sincc it cannot. at the request of only one of the parties or on its own ini-
tiative, lend its gond offices to bring the parties together and suggest means for
settling disputes between member States. In ils opinion of August 21. 1984,the
Committee suggcstcd amendments to thc Charter to correct that prohlem.

Tlie l'act ofBogoti

This instrument is provided in Article 26 of the Charter so that it will

"cstnhlish :iilcqu:itr. procedure.; for ihc piicilic rcttlcmcnt ijf ilirpiiic\
:ind will detcrr~iiii~the :ippri>pri;iicii1c:iiirfiir their ;ipplic;iiio50 ihat
n<idiwute t~eiwccn ,\mcric:in Staiis rhall f;iii~f Jeiiiiiiii.~ sctilcmcnt
within'a reasonable period".

Thc Pact of Rogoli was to bc 2codification of those trcaties on peaceful set-
tlement existing withiu the inter-American system and listed in Articlc LVlll
thereoï. That Article provides that once the Treaty comes into cffect. the ear-
lier conventions shall cease to bc in force with respect Io the Parties thereto.
The American Treaty on Peaceful Settlernent went beyond jus1 codifying

those conventions, as said before: an effort was made to CO-ordinate it with
the provisions of the United Nations Charter and significant restrictive stand-
ards were introduced vis-à-vis its application and others such as the sequence
of steps thc parties would be compçlled to follow if the procedure of concili-
ation was invoked from the outsct.
Thus, the Pact of Bogota could be dcscribed as an inter-American treaty ANNEXESTO THE COUNTER-MB,UORIAL 429

that are available to the that does no1 esiablish2the pre-eminence of
any one method over another or any obligation lo initiale the procedures:
instead. if either of the pziriies invokes thé procedure of "investigation and

conciliation" (Article XVI) and ;iny party may rcquest the Permanent Coun-
cil of the Organization of American States to convoke the Commission of
Investigation and Conciliation. If the Commission's efforts are unable to pro-
duce a solution, this cntitles ciiher of the parties, il they have no1agrccd upon
an arbitral procediire. 10 have recourse to the International Court of Justice.

In this case. the Court shall have compulsory jurisdiction, in accordance with
Article 36. . ..eraoh 1. of ils Statute (Article XXXII). If the Court. which
has ihe righi 1,)dccidc on 11souii juri*di;.iiun (,\riicle U.\XIII). should cIccl:irc
it,cli u,iihoui luri,diciion 10 hr.:ir ihc c<introi'cr>!. fur ihr. gciicr:il rc:isi>iir
mcniltnnccl ln ,\riicl:~ \', \Il ;IIIJ \Ill t)flhe Tr~:>iv. the ~.cmircwera\ sh;ill hc
declared cnded (Article XXXIV); but if the ~ou;l for any other &ason de-

clares itsclf to be without jurisdiction to hear and adjudge the contriiversy,
the contracting parties arc obligated to subniit ii to arbitration in accordance
with~ ~ ~ ~ ~isions~ ~ ~~~ oertincnt Chaoter ol the Pact (Article XXXV). In
any event, recourse to the International Court of Justice is available io the
varlies inasmuch as thev declare that thev recopnize the iurisdiction of the

court as comoulsorv io;o f~, ,o.without the necessitv of anv soecial aere.- .
nient so li~iig .;>ihc i're:ii!. n13yhe in clfcct. in al1cl~.i~>i;te d:l juridirnl iiGure
t11;ii;ire spcc~licJ in ilic 1~x1ni ihc 1':i:tiiscli [~\riicIc X.\Xlj
This isthc system set up under the Pact of I36gota with respect to the auto-
matic sequencc of procedures. Whcn matters reach the point of compulsory

arbitraiion. should one of the parties fail 10dcsignatc ils arbiter andior fail io
prescnt its lis1 of candidates witliin a period of Iwo months. the oiher party
shall have the right to requcst the Permanent Council of the Orgnnization Io
esiablish the Arbitral Tribunal. in accordance wiih the manner established in
the Pact ilself (Article XLV). If, moreover. the parties fail 10 draw up an
aereement clearlv definine the soecific matier that is the subicct of the con-
. ~ ~
ir<iir.r>y iviihiii ilircc IIIO~I~, :a: UI ihc d;itc ihe Trihiin;il i; inçi;illcd. iIi:i~
;I~ICCIII~II~ "\h:sll Ik Jr,<ii.n up hv ihr. 1niern;iiiiin;il Ciiurt iiiJii.iiic iliri>u;ti
\uiiiiii;ir!~x<~ccclurc:.iiiJ >h.ill I).:hinJiiig uj>i,ii ihc p;iriic\" (,\rli:l~ XLIII).
l'hc I;411cr~cqucncc :tiid (IlL lL.<alp~h.ihiIit! iIi;ni ,trI~itr;~i~c~cnoulJ hc donc
~~ilh~~u ci ncuf lhe St.qtc>p.irticj 10 lhe di>[ii~i: p.iriic.p:iiinib nl1;11h:.s came 1,)

br. c:illcJ ihe :tui,ini;iti\i,ni th^Trr.:ity ;~iicI;irhitriiii<,ii h\ iIr.fiiul1. rcslir.eiii.cl!.

E.~atrii,~oriotof r11eP<ICI

The Committee conducted its examination bearine in mind thc sense of

the Permanent Council's rcquest of the Inter- me ri cuindical Committee
and ihc ;idvisahility of trying to rnake thc Pact of Bogot.4 morç viable. None-
theless. it was full\. awaré that the time limitation wis such that ii woiild not
be able to look inio the possible reasons why so many member States of the
OAS have no1 ratified ihc Paci. This would have meant contacting several
government and non-governmcnt sources to supply suitable informalion on

ihis subject. To do this, an adequate time frame would have been necessary.
as would the willingness of those sources to supply concrete information, if
that information is available. The Committee did not go into that aspect of
the iopic lor that reason.430 BORI>ER ANDTRANSBORDER ARMED ACTIONS

Aliliough ih~ C>mmiricc ch;iminr'd c.ich 21 ihc pri>ccdurc\ iiiih~ir
cntircty. io \uhit:inti;iir' Ihr ('i~mmiitcc'\ pi)siti.i\;lr;irly;i\p.,>rit~lrit h.8,
iii.idc sr>i.cificrcfcri'ii18,ilti~sc;iriiclclor \\hich thc Ci,mniiticc is rc:iuii-
mcndiig amendments.

Article II: The first paragraph of this article is poorly worded, inasmuch as it

is not possible to rei:ognize the ohlignrio~lIo serrle international controversies
by regional pacific procedures before referring them to the Security Council of
the United Nations since, if those controversies were resolved. there would be
nothing to briiig to the Security Council. This point ought to be corrected for
ihis reason, and in order to co-ordinate the texts of the inter-American instru-
ments. Therefore. the Comrnittee feels that this article could be worded in a
niiinncr ,iniilnrIO ihni u\eJ In the Proiocol of ,\mc.ndnicni Io ihc Inter-Anicri-
i;in Irc;ii\,ifI<ccip~oi;ilAsiistancr. in ihc .imr.ndnicnt of Arliclc 2 thcrcof. In
the ~rotoiol, it is 'ow clear that it is not compulsory to exhaust regional reme-
dies before going to the UN Security Council or to the Gcneral Assembly, in

accordance with Article 52, paragraph 4. of the United Nations Charter. That
point is also addressed in the Committee's opinion of August 21, 1984. Dr.
Roberto MacLean fclt that that paragraph need not be included at all.
Furthermore. the Committee approved a draft amendment to this article,
presented by Dr. Emilio Rabasa. The purpose was IO make the Pact more
precise and broader on two points: ((1)the special procedures. that the parties
may elect to find a solution: and (b) that the provision -and ultimately the
Pact - encourage and embrace certain initiatives that the member States of
the Organization of American States may undertake for the peaceful settlc-

ment of disputes.
The draft amendment approved mcans lhat the final part of the second
paragraph of Article II would be deleted. That part reads as follows: "or,
alternatively. such special procedures as. in their opinion, will permit them
io arrive at a solution". This would be replaced by two separate para-
graphs, to follow immediately alter the second paragraph. and to read as fol-
Iows:

"In addition to the procedures cstablished in this Pact, the parties to
a controversy may, by common agreement, opt for any other suitable
and expeditiotis means.
Furthermorc, any Member State or group of Mcmhcr States of the
Oreanization 01American States. with the orior and exoress consent of
al1parties to a given dispute, may assist in the manner they deem appro-
priate, in resolving the dispute peacefully."

When continuing with the examination. the Rapporteur recalled that in
the draft amçndments 10 the Charter oroduced bv CEESl and reviewed bv
the Permanent Couiicil, and in the current draft in proccss in its Cornmittee
on Juridical and Political Affairs. those articles that discuss peaceful settle-
ment of disputes make reference to "existing" controvcrsies ralher than those

that "arise or may arise" between States parties.
The Rapporteur also pointed out thai in inter-American treaties such as
the one on Conciliation or the one on Arbitralion (1929). reference is made
to controversies that "have arisen or may arise". Article XXXVlll of the Pact
itself calls arbitration a procedure for differences of any kind that "have
arisen or may arisc" in the future betwcen the parties. This text leavcs no ANNEXES TOTHECOUNTER-MEMORIAI.
431

doubt whatever that thc provision embraces no1jus1 potential future contro-
versies but rather iillcontroversies. The correspondine article of the Protocol
of Amendments to the Inter-American Treaty of ~cEi~rocal Assistance also
took this approach when it ameiided the current wording of Article 2 of the
Rio Treaty to rcad as follows:

"As a consequence of the principles sct forth in the prcceding article,
the High Contrzicting Parties undertake to scttle their disputes with one
another bv oeaccful means. The Hieh Contractine Parties shall make
every cffuct io zichievethe peaceful seïtlemcnt of di&tes through proce-
dures and mechanisms provided for in the inter-Amcrican system before
submittine-iheni to the Seciiritv Council of the United Nations. This oro-
vision hall nui hc inicrprr.tcil,i, :in inip.iirmcni ui ihc right. nnJ t,bii$.i-
lion5 of the siales p:iriic$ unilcr art~clcSJ iind35 of the ('liaricr <iiihc
United Nations."

When oar.crau .2 was out to a vote. with the anicndment sueeested .,.the
K:ilip<irlc~r.11u;i\ .ilipri,<:itiywvcn \(itcs [Ir. 5lacl.ca11 indic;itcJ th:it hc
pri,fcrrcil the prcsml u,<irilini:01 ihc teri of tlic t':ici.'l'lielcFO bppro\:J I>
ihe following:

"Consequcntly, should therc be a controvïrsy betwecn two or more
signatory States which . ..", etc.
The tex1of oar;ieraoh 2 of Article II was also reviewed with resoect to the
. d .
Jis:rcp:incy ;rc:itcJ hyihr. i~ct th;$[ihc PJCIni:ikcs rcicrc~icc 1.1the !;+Lth11in
ihc cvcni th.11 ;c,inir,w;r,y :irihc\ hciwccii tu,,ilrniorc 5ijin:itorvStsicr tvhich.
"in the opiiiiori oftlie cannot be settled by directnegot~ation. the par-
ties bind themselves to use the procedures cstablished in the Treaty. On the
other hand. Article 25 of the OAS Charter provides that in such a circum-
stance it would suffice to have the "opinion of o11cof them" that the contro-
versy cannot be setlled through the usual diplomatic channels, thus allowing
recourse to any of thc means the Pact provides.
Herc the Rapporteur himself added to his own inform~ition on this point
by citing an explzinatory note that appears in a study prepared by Dr. Juan
Carlos Puig, entitlcd "The Inter-American Treaty of Rcciprocal Assistance
and the Coiilempiirary International System", puhlished in the 1983 edition
of the Aniiorio Jlrri<lico of the Organization of American States, page 173.
That note and thc documentation cited therein contcnd that the change in the

Spanish version of the Pact of Bogota was due to a typing error. The note goes
on to say that the French tex1 is consistent with that of the Charter of the
Organization and is equally authentic. It was cstablished that the French text
follows the text of thc draftprepared by the Inter-American Juridical Com-
mittee in 1947and that of Article 25 of the OAS Charter.
Althoueh there was a motion bv the Raooorteu..that an adiustment in the
lc\t I)c r<oninicndrd IO m;ikc iicon~isicni ivith lhc ~rciich'vcrsian. i\,hi~h
w;isin CI>III~~L<~,~rccnl'~nlwith ,\rt,cI~, 25.~hc;,niïn~l~ncnl \~ir,iaiiiior th:it
ri;iriicul:ir rihr;tw ,,f the scctiiiJ p;ir.irr:iph cd Article II a.iilrcad "in ihc
Opinion of onc of thc parties": That amcndmcnt ciirried the votes of Drs.
Leoro, Vieira, Ciillcjas Bonilla, Rabasa and Waaldijk.
Dr. Hcrrera Mzircano motioncd that the phrase in question .'inthe opinion
of the parties" he dcleted. When a vote was taken. only two favorable votcs
were cast, that of the proponent and that of the Chairman who said that he

voted for this sccond draft amendment as an al1crn;itive that would have at
least improved the text of the article.432 BORDER AND TRANSBORDER AKMEDACTIONS

Hencc, the Comrnittee is suggesting that Article II of the Pact read as
follows:

"Article IIThe High Contracting Parties shall make every effort to
achieve the oeaceful settlement of international disoutes amone theni-
selves through regional peacelul procedurcs, before'submitting Thïni to
the Gçncral Asscmbly or to thç Securily Council of the United N;itions.
This nrovision shail not bc internreted as an imoairment ol the riehts
and obligation of the States under ~rticie 52, paragraph 4: of
the Charter of the United Nations.
Consequently. should there bc a controversy between two or more
signatory States which, in the opinion ol the parties. cannot besettled
by direct negotiations through the usual diplomatie channels. the par-
ties bind themselves to use the procedures established in the prcscnt
Trcaty. in the inanner and under the conditionsprovided for in the fol-
lowing articles.
In addition to the procedures esiablishcd in this Pact. the parties to a
controversy may. by common agreement. opt for any other suitable and
cxpeditious means.
Morcover, anyMember Statc or group of Membcr States of the Orga-
nization of American States, with thc prior and express consent ol al1
partics to a controversy, may assist in the manner they deem appropriate
in resolving the controversy peacefully."

Article V: With respect to this article. which provides that the procedures
of the Pact may no1 be applied to matters "which. by thçir nature. are within
the domcstic jurisdiction of the State", it was agreed to leave the text as is.
even though a member of the Committee. Dr. Luis Herrera Marcano, sub-
mitted a draft amendment worded as lollows:

"The present Treaty shall not be applied to matters that. by their
nature. are within the domestic iurisdiction of the State. Uoon ratifvine
this Trcaty. or ai any time thcr&fter. each State may declare thatiia<
cepts the compulsory jurisdiction of the International Court of Justicc
10-settle any disputé as to whether or no1 a malter is, by ils nature,
within the domestic jurisdiction of a Statc."
A subamendmcnt proposed by Dr. MacLcan addcd the words "on the basis
of reciprocity" so that the amendment would read: ". . may declare that it
accepts. on the basis of reciprocity. the compulsory jurisdictio. ..".etc.
Two votcs were cast in favor ol that dralt amendment. The other members
voted against il.

Article VI: With respect to this article. which provides that

"The aloresaid orocedures. furthermore. mav not be a..licd to mat-
icr\ ;ilrr:id! ~ettlhy ;irr;iiigemeni bctuceii the partie\iirIn iirhitr;il
;iu;irJ ,hy deiiri<in ;in iiiiern;iiion;il court. or uhirh ;arc%u:uhyrncd
agreement s r treaties in force on the date of the conclusion ol the
prcsent Treaty",
the Commiitee agrced to make the clarilication suggçstcd by the Rapporteur.
Under international law and as embodicd in instruments such as the "Vienna
Convention on the Law of Treaties", when circumstances such as those des-
cribed under Chapter V of that Convention obtain, this paves the way for

legitimatc action on the part of the State vis-à-vis treaties being void or valid, ANNEXES TO THECOUNTER-MEMOKIAL 433

which is a point that is entirely different from the provision contzined in
Articlc VI of the Pact. In cflect. :Itrcaty neither rcsolvcs nor can it resolve the
question of whcther or not it is valid. These questions would havc tu he re-

solvcd. but never resolved bv the treaties thcmselvïs. Hcnce. the orinci~lc
/1~1~10AUIII~.er~.~t~~d,~)ciot <ippl!1,)~IIL.I;~nI,lthcy .trc nui inc1ud:J i.nLicrilic
pr<i\i*i,?nuf ihc I'.i~tcil l(.,goi3 in qur.,ric,n. 111thir rc5pe;i. I>r hl:lcl.c;iti icll
ihat the clarification was rcdund;int:
Dr. Herrera Marcano. for his part. proposed that tlic phrase "the aforesaid
procedures. . ntay not bc applied" be replaced by "the present Treaty shall
not be applicable . . ."This wording received one vote.

Article VI!: Thcrc was an interesting discussion conccrning a well-entrenched
[.aiin American principlc dating hack to the Calvoand Drago doctrines. Thc
conclusion reached was that under the prcsent circunistances the provision
w;is ;ivery important step tuward prevcnting any diplomatic rcpresentation
from orotectine a n;itionnl ;ind from referrine ;icontroversv to a court of
internitional jürisdiction for th;it purpose whGn said national has been af-
forded the means to place his case before the competent domestic courts of
the rcspective State.
Dr. Herrera Marcano was of the view thal it would be besr to delete thai

article. in order to avcrt any tacit recognition of diplomatic protection.
I+e cmphasized that the underlying assumption of diplomatic protection
wzs the denial ul justice and that the provisions of the Amcrican Convention
on Human Rights in this respect ought to be tziken iiito account. He submit-
tïd a draft to replace Article VII, which reads as follows: "Any controversy
hïtwecn the parties th;!( conccrns the existcncï or niinïxistence of a casï
of denial of justice, shall be gcivcrned by the provisions of the Americsn
Convention on Human Rights." The proposal reccived only one vote.

Arricle V111: When thc tex1 of this article was discussed. two of the mem-
bers concurred that ihe provision could easily be dclcted since it seemed to
them superfluous. The Committee felt that il would he best tu retain the arti-
clc as it is presently wordcd.

Chaptcr Two. which covers the "Procedurcs or Gond Offices and Mcdia-
tion". was the suhject of minor ohscrvations.
The Committee decidcd that Articles IX and XI ought to be amended so
that the eminent citizens that provide their good officcs or mediation should
bc citizcns of not just "any Ariierican State". but rathcr '.erninent indivi-
duals" of any nationality. The Committee agreed on that point and recom-
mended that the amendment be introduced in Articles IX and XI.
As ;ircsuli oi tlic :iiiiciidiii~~nriciiinimcndcd (or r\rticlc IX. Arii~,lr.X uas
~h;iiigcJ ii)rc:I<I"the iiiJiviilu:~l~"r.itlicr th:tn "tlic ciii/cn\"
Tlw ;irt~cI~, 11qu~~si~ob \\n,I,IIc~\v,>rdc,i f,~llti\\s.

"Article !,Y: Thï procedure of good offices coiisists in thc attempt by
one or more Amcrican Governments or one i,r more eminent indivi-

Article X: Once thc parties have been brought togethcr and have re-
sumed direct negotiations. no further action is to be taken by the State434 BORDERANDTRANSBORDER ARMED ACTIONS

or individuals that have offered their good oflices or have accepted an
invitation to offcrihem; ihey may, however, by agreement between the
partics, be present al thc negotiations.

ArticleXI: The procedure of mediation consists in the submission of
thc controversv to one or more American Governments not parties to
the controvers~y.or to one or more eminent individuals nG a pariy
to the controversy. In either case. the mediator or mediators shall be
chosen by mutual agreement between the parties."

Article XIII: During the discussion of this article, il was noted thai the
deadline given to the parties to reach an agrcemeni on the choice of thc
mediator or mcdiators (two months) and that given for mediation to hegin
and io rcach a solution (fivc months), would sccm to bc vcry short, pariicu-
larly the latter. The circumstnnccs of a given controversy ought ta be taken
into accouni soas to exiend those deadlines. whenever necessary.

CHAP~ERTHREE
Procedrrre 01 lnvesrigationand Concilinrion

The entire chapter on this procedure was cxamined. Thc view was thal the
mcthod for sctting up a Commission of Investigation and Conciliation ought
to be simplified. Under the tcrms of the Pact of Bogoti. a series of bilateral
notes beiween the States Parties and a large numher of conciliators are rc-
quired,over and above the Permanent Panel of American Conciliators.
Dr. Herrera Marcano adhercd to the position rcflccted in the following

draft amendment for Article XV. which he prcsented to the Committee for
its consideration:
"Upon ratifying this Trcaty orat any lime thereafter, each State may
declarc that it accepts. on the basis of reciprociiy, the obligation to sub-
mit to conciliation, biised on ihc terms of the prcscnt Treaty. any coii-
troversy that may arisc hctween it and any oiher State Party."

When voled on. the .roposed amendment did no1 win a maiority .f t.e
votes.
For his part. the Chairman said that as he had said in his rapporteur's re-
port. he was submitting a draft amendment io the Committce which he sug-
gested be the first pziragrnph of what is now Article XV.

He went on to say that in his view,in the event of a controversy, conciliation
ought to be binding upon the parties. The precedent was Arlicle 1 of the Gene-
ral Convention on Inter-Amcrican Conciliation (1-9). and Article 4 ol the
Eurcinean C~nven~io~ ~ ~ ~ ~ceful Scttlement of Disoutcs (1957).and another
artidé in the Revised Act for the Pcaceful ~ettlemeni'of ~i;~utes'of the United
Nations (1949). He said that a Treaty of this nature oueht to foster fulfillment
of the phiples on peaceful scttlement. reflecting iraclical acceptancc of
those principles by an agreement to submit to a compulsory procedure. one
such as the procedure in quesiion, conciliation. which was so flexible and so
uscful. He added that to com~lcment this draft amendment. he would in due

by the parties. In this way, conciliation woJd clearly&! a ~om~~lso~r~ecoürse
that would not necessarily be auiomaticand that could serve its funciions with-
out furthcr problems were it binding upon the parties. ANNEXES TO THE COUNTEK-MEMORIAL 435

The draft amendment that he submitted to this effect rcad as follows:"The
High Contracting Parties shall submit al1controvcrsies that exist between them
to conciliation."
Five Committee members voted in favor of this proposal: Dr. Leoro. Dr.
Calleias Bonilla. Dr. Rabasa. Dr. Vieira and Dr. Ortiz Martin.

A; for Articles XVII. XVlll and XIX and with the view to simplifying the
method for setting up the Commission of Investigation and Conciliation to
serve in the conlrove~svconcerned. the Commitleea~~roved the amendments
suggcsted by a worki& group rnade up of Drs. ~Eoro, Vieira and Herrera
Marcano. These were bascd on others originally drawn up by the Repre-
sentative of the General Secretariat and then adjusted by that working group.
The texts that the Committee ;igreed upon for these articles arc as follows:

"Article XVII: Each of the High Conlracting Parties may appoint
four individuals held in high regard for thcir impartiality. competence,
and sense of honor and willing to accept the functions of conciliator.
Only Iwo of these shall be nationals of that State Party.
Any ofthe Contracting Parties may replace the individuals they desig-
nate.

In the absence of such appointments. ilshall be understood that the
State is appointing the members of its national group from the Perma-
nent Court of Arbitralion of The Hague.
Article XVIII: Using the lis1of individuals refcrred to in the prece-
ding paragraph, thc Gcneral Secretariat shall form a Permanent Panel
of American Conciliators.
Article XIX: In est;iblishing the Commission of Investigation and
Conciliation referred to in Article XVI, the following procedures shall
be followed:

(II) each Party may design;ite one or two members from the Pcrnianent
Panel of American Conciliators, who shall not be nationals of the
appointing State;
(b) these two or four members shall in turn select, from the Pcrmanent
Panel, a third or fifth conciliator, as the case may be. who shall not

bc a national of cither of the parties;
(c) if within thirty days of having been notified of their selection. the
members referred to in subparagraph (11)are unable to rcach an
agreement on the choice of the third or fifth member, each one
shall separately draw up a lis1of conciliators. drawing [rom the Per-
manent Panel and listed in the order of preference; after comparing
the lists so prepared. that member who first receives a majority of
votcs shall be dcclared selected. The individual so selected shall
serve as Chairman of the Commission."

CHAITERFOUR

J~~(/icialProce(1iire
One of the features of the Paît has been recognition of the compulsory ju-

risdiction of the 1iitcrnation;il Court of Justice for controversies considered
t<ihr. oi;IIcg.11nxturc undcr thi tcrm, ,,i ,\rli;liXSSI T<);inicnJ thi ini-
pirt'ini p<iiiit.L>rklcrrcr:i \I;irz;iiii~prvp~,,~.Jih:it.irti;lrc;iJ;istull~ii\,,:436 BORDER AND TRANSBORDER ARMEU ACTIONS

"When ratifying the present Trçaty or at any timo thorcaitcr, cach Stale may
declare that il recognizcs. on the basis of reciprocity. with respect to any
other American States. ...etc.": the rest of the tex1 would remain the same.
The proposa1 did not receive the votes needed 10 be approved and there-
fore the text of Article XXXl of the Pact would remain as is.
In reference to Article XXXII. which institutes the automatic procedure
when a controversy has not heen solved by means of conciliation. Dr. Herrera
Marcano proposcd an amcndmcnt, worded as follows:
"Wheii ratilvine thc vresent Treatv or al anv time thereafter. ezich
State may declare that it accepts. on the basis of reciprocity, zisbinding

i.so .facro. the iurisdiction of the Inter-American Court of Justice with
resoect to anv controversv that has been submitted to conciliation under
theterms of ihis Treaty and that has not been resolved, without the need
for any special intervention so long as this Trcaty remains in effect."
This proposal received one vote.
For his vart. Dr. Vieira said that a different a~~roach mieht be to word thc
text as follows: "If ;iconciliated zigreement is not rçziched, any of the other
procedures for peaceful settlement establishcd in this Treaty shall be insti-
iuted without delay."

The Chairman said that eithcr way. the amendments suggested would put
an end to any form of automatism within the Pact; he went on to say that per-
haps some consideration ought to bc given to finding some method, as he had
sue--sted as Kaooo,,eur for the tonic. that would allow anv State that so de-
sired to op1 for the riutornatic procedure.
With that in rnind. he suhmitted a draft amendment to Article XXXll for
consideration. That amendmcnt was approvcd by a votc of six in favor and
one against. The text is as follows:
"When the procedure of conciliation established in accordancc with
this Treaty does not lead to a solution. either of them shall be entitled to

have recourse to the International Court of Justice in the manner pre-
scribed in Article 40 of thc Statute thcrcof. 'l'hc Court shall havc cont-
pulsory jurisdiction in accordancc with Article 36. paragraph 1, iifsaid
Statute."
DIS. Hcrrera Marcano and Vieira then proposed the deletion of Articles
XXXIII. XXXIV and XXXV. in the view that these were the articles thzit led
to the next step of arbitration by default which. in their judgment, was an
unworkahle nieans of settlement. They went on to say that the other articles
in this chliiitcr were redundant, since thev simplv re~eated the content oi the
.. .
Si.ituic uI tlic Intcrn:,ii,in:~l <:<iurt<iiJii.tisc.
Iiircg.ird ICI iIi~irtilii>..ihc Cli.iiriii.i\.siJ111;itlii\ii,ulJ nic:il.II-nu
1%):iiiii~iul~i~;irhitrsiion :anJ :!rhitr:iiion hl dct;~ultin th^.l':ici. iilii:h a<~uld
still be'an ooiion. even with the new wordine ado..ed b. the Committee for
Ariiclr. SSXII HLsaid ililiII ihc Coitiiiii~ir.cI;~i.c,rcdJr,lci01ntli;il I"(ic oI
;irliitr.iti<in.u,hicli w;i, iifthe pos~ihilitis~hc liaJ pi~inicdup in 1115r~.porl.
he would vote in favor of deletion of those articles iia motionwere made to
that efiecc.
A motion was madc and whcn put to a vote dclction of Articles XXXIII,
XXXIV. XXXV, XXXVl and XXXVll was approved by the Committçc.
At thç rïquest of Dr. Ortk Martin, il should he noted here that hc voted
against deletion of Article XXXIII. Deletion of the other articles was approved
bv a consensus. ANNEXESTO THE COUNTER-MEMORIAI. 437

Thereforc. uiider the Pact's Judicial Procedure. the Committee's recom-

mendzition would leave only Article XXXI. as il is now worded, and Article
XXXII. in ils amcndcd version shown above.

When discussion beean on this Chaotcr. which concerns the Pact's Procc-
cliirc uï ,\rhiir.iti<in.ihL. ('h:xirniitii Iir<ip<i;~d the fulliowiii~ driill iiminilmcnt.
I~i;iritigIIIniinJ ihc dr:iii :inicndnicni~ .idi~pied hy ihc (:oniniiitcc for Chap.
ter Four 10 >inirilifv .ind c,)-tirrlinlitcth< tcxt of Ariiclc X.XX\'III .ind 1<1

remove [~om ~ itihe.inaoo,,ori,te conceot wherebv. under thc tcrms of the
l',ici. the par~iehnI;i!, ~ïille! :ig,rcc. suhmii 10 :irhiir,~tion differcn<c\ of anv
kind: ,'The Ilieh Conir:ictiiig I'aitic~.II tlic\, r., ;irrcc. ,h.ill \iihm181:irhitr.i-
tion diïferencës of anv kindthat mav existbctwëen them."

The abovc proposal received fou;votcs. Dr. MacLean said that he did no1
votç in faviir of that proposal because he had abstaincd on the carlicr zirticles.
A vote wzisthcn taken on a formul;~ pri~posedhy Dr. Herrera Marc;in«. Its
tex1 read as follows:

"When raiifying the present l're;ity or at any time thereaïier. each
State Party may declare that it accepts. on the basis of reciprocity. the

obligation Io submit to arbiiration. in accordance with the following
provisions. any controversy to which the present Treaty applies."

That draït received one vote.
Whcn neither of the two ameiidments proposcd for Article XXXVlll car-
ried. the Chairman said that it would seem absolutely essential that at least

the opening phrase of this provision be dropped; with deletion of Articles
XXXlll through XXXVIII of the Pact, il would no longer makc sensc. He
submittcd ihc Sollowing tex1 to the Committcc's considcration, which was
approvçd by a consensus:

"Article XXXVIII: The High Contracting Parties may. if ihcy so
agree. suhmit to arbitration difierences of any kind. whethcr juridical or

not. that have arisen or ma). arise in the future between them."

ï'licrc M:I\ :11s0:IcuIijcnIil\ in 1:ivor of .in :imcndmcnt pr<ipo\cd l'or ~\riiclc
XXXIX. consiiiing of ihc Jc~1c~iiii oif the uurds 'in ihc c:j\cs c<inir.mpl:iicJ ii~
,\rliclc~\ X.XX\' ;iiid XXX\'III iif lhr. prcwni 'l'rc;ii?" 3iiiie Anv rifcrcncc Ii,
,\riielc SXSV \v:is~~;iriiculnrl! pointlcsi non th.11the C:ominilidc h;id rcc<im-

iiicndcd it.JcI~ti<iii l'licrc~fiirc. ilic tesi tigrccd upun a;i> ;i,fi,ll<,us:
"Article XXXIX: The Arbitral Tribunal 10 which a controversy is Io

bç subniitted shall he constituted in thç following manner, unless thçrç
exists an agrïcmcnt Io the con1r;iry."

Following an erchange of views and in rcsponse Io a motion made by Dr.
Emilio Kiibas;~. a Workine Grouo \vas establishcd. made UV of Drs. Lçoro.
Vieir., .ind Ilcrrr,ra. IO prci~,iit:I u~irkiii~ pi1pr.rci,ni:iining ~uzgc.\ieJ .iincnrl-

niciiis !tir ihc rcm:iinins :8riiclc\. hc;iring in niind ihs Ilrocrcsi ni~dc ilius ï:ir
bv ii,;iv of :imciidinciii\ Io thc l';ici. ,\[IVnicnibcrs ih:ii 50 ilcsircd cuuld ioln
the c;oup.
The Working Croup presented a document. dated August 24. contüining

its recommend;iti«ns. That document is attached.438 BORDER AND TRANSBORDER ARMED ACTIONS

Having cxamined that document and having heard the reasons why the
Workine gr ou^ had sueeested thc amendments in uuestion. the Committee
as a whtle, at Gddswith'jlheWorkingGroup's position but with the conscnt of
ils memhers. rccominended the deletion of Article XXXIX. since in effect
the provision contained therein was not necessary. no1 even with the amend-
ment introduccd hy the Working Croup.
Following the group's recommendation, the Committee agreed 10 make
what is now Article XLI, Articlc XL and to make Article XL Articlc XLI,
since this would seein 10 be the more logical ordcr for those provisions.
At the same time. since present Article XL (XLI in the Commillee's
recommended version) makes reference to a two-month time period from the
lime of "notification of the Court's decision in the case provided for in Article
XXXV". and since the opportunity for the Court ta render judgment was
eliminated when deletion of Article XXXV was recommended, the Committee
decided. bv a consensus. to ao..ove theamendment ~rono. . bv the Grouo. so
ih:it ihc iuii-n~ciiithiinic pcriod hc ruiinicil ;fis'ul the rli>iihc.:igrccmcni"
hciaccii ilic p. riic1,).iihmii :iconir<i\.cr\! tu .irhiir.itii~n turih~.r. ihc Gri~up
rcc~mmcndcd thdi ;ttille heeiniiin01 the :article>PCCI~I:refcrciic~bc 111:i.lt~u
the preceding article in the Facl. ~Xerefore. the ~6mmittee recommended that
the article be worded as follows:

"Arriclc XLI: If the procedure set forth in the preceding article is not
carried out within two months of the date of the aereement. each oartv. .
sh;<lln:iiiic ,in< ;irhitof rccogni~d coiiipclcnic IIiluc\tion\ of intcr-
ii.iti<in;ill.ia and of ihc hishcsi iiiivgrii!.. .iiid \h:ill tr:in\niii the dcrign.i-
tiuii to ttic l1crni;,ncni Ci~uiicilUI tliz-Or~liiii?ntii~nof .\mcric.in S1:itc~
At the samc lime . . ."

In connectii~nwith Article XLIII, paragraph two, the Croup suggcsted the
following wording:

"If the special agreement cannot be drawn up within three months
alter the date of the insrallrrrio,iof the Tribunal (as the article is now
wordcd): il shall be drawn up by the International Court of Justicc
through summary procedurc, and shall be binding upon the Parties, rrn-
less r/ic I'arries irisrrircrrhe Tribitna1 ro draw rip said agreemenr."
The Committee felt that it would be better io substitute the word "installa-

tion" with "formation" since the membership of the Tribunal would be deter-
mined before it was installed; installation is, in al1likelihood, something that
would have to be determined in the agreement 10which this article rcfers.
The consensus on the Committec was to approvcthe phrase italicized above
al the end of thc second paragraph of Article XLIII. so that the Partics could
also go to the Tribunal ilself to havc that agrccmcnt drawn up. There is a
similar provision in Article IV, paragraph two, of thc General Treaty of Inter-
American Arbilration. which is in force with respect 10 a numher of member
States of the Organization of American States.
nius. there being no amendment 10the first paragraph. the Committee re-
commended the following wording for thesecond paragraph of Article XLIII:
"If thç special agreement cannot be drawn up within three months of
the date of the formation of the Tribunal, il shall be drawn up by the
International Court of Justice through summary procedure, and shall be

binding upon the Parties, unless the Parties instruct the Tribunal to
draw up said agreement." ANNEXES TO THE COUNTER-MEMORIAL 439

The consensus on theCommittee was to dclete Article XLV, as the Working
Group had recommended, sincc Article XXXV had already becn deleted,
which was oneof those that had led to arbitration by default. Having deleted
that provision, the Committee u,as of the view that this ohligatory procedure
ought not to be retained, one whercby the Permanent Council would have to
intervene to estahlish the Tribunal of Arbitration if any Party failed to desig-
nate the arbiier.
The Committee had no observations with respect to Articles XLVI. XLVll
and XLVlll of the Pact.
Following thc Working Group's suggestion, it was decided to delete from
Article XLIX the stipulation to the elfect that if the parties do not agree on
the amount of linancial remuneration. the Permanent Council of the Organi-
zation shall detcrmine said remuneration. If arbitration is conducted in
accordance with the amcndments bcing suggested, Le., only by mutual agree-

ment of the parties, then said parties should have no dilficulty in agreeing
upon thosc expenses. With arbitration by default, which the Committee de-
cided to delete. the possibility of such a problem was not so remote. The arti-
cle in question was so approved. hy consensus, to read as follows:
"Arriclc XLIX: Every member of the Tribunal shall reccive financial
remuneratiori, the amount of which shall be fixed by agreement between

the Partics. Each Governrnent shall pay its own expensïs and an equal
share of thc common expenses of the Tribunal, including the aforemen-
tioncd remunerations."

CHAITERSIX

Fiilfilb?~enrof Decisions
Although a qucstion arose when the Committee discussed Article L -

which is the only one in this chapter -, concerning what measures the Meeting
of Consultation cciuldagree upon should one of the parties fail to comply with
the obligations imposed upon it by a decision of the International Court of Jus-
tice or an arbitral award, the Conimittce was in favor of retaining the article as
it appears in the Pact. It felt that it was a potential meaiis of resolving within the
inter-American system the problcm that the article itself poses, before it goes
to the United Nations Secunty Council.
The conclusion reached was that. in any event. if any of the parties in-
volved in a case of the kind provided for in Article 50 of the Pact wished to
bring it to the Security Council, it would be free todo so under Article 11of
the Pact itself.il ainended in the manner suggested by the Committee and, of
course. in accordance with the provisions of Article 52. paragraph 4, of the
United Nations Charter.

CHAPI'ERSEVEN
Adisisory Opinions

F.nJor\ing ;,n anicnrliiir.ni priiposcd for Arri~lc1.1.sii~gcsi~'Jh!. Dr. K:ih.i\.i.
thc C'i~iiiniiticcJcr.idcJ. h;im.i]<iril!.lhii1h:iitrticlc should :ilsiiicli.ilc ilic
Iiiicr-,\nir.riç;in Juridic.<lCc,mmittc;i\one oI ilic orgiins ironi u li~.in;IJ\I-
rivy <ipinii,iici>uldlie rcqiic\i~.il
Ihc agrccd upi~ii Ir.htiv:ir.is I<ill<r\is

"Arricle LI: The parties concerned in the solution of a controversy440 BORDER ANI) TRANSBORDER ARMED ACI'IONS

may, by agreement. petition the General Assembly or the Security
Council of the United Nations to request an advisory opinion of the In-
ternational Court of Justice on any juridical question. They may also
request one of the Inter-American Juridical Commitiee.
In both cases. the petition shall be made through the Permiinent
Council of the Organization of American States."

CHAPTEREIGHT
Final Provisions

The Committec had no observations with respect to Articles LII. LIII.
LIV. LV. LVI. LVII. LVIII. LIX and LX of the Pact.
Dr. Herrera Marçiino proposed an amendment. by way of an additional
articleto be included among the final provisions. The tcxt would rcad zis
follows: "Nothing in the present Trcsty may be interpreted as impairing or
replacing the provisions of the American Convention on Human Rights.
signed in San José.Costzi Rical in 1969."
In connection with this proposal, views were expressed to the effect that
it would be inadvisable to introduce such a provision. since the Committee

had in no way reconimended any amendment to the articles of the Pact that
could bc interpreted to impair the provisions of the American Convention on
Human Rights.
Overall. the Corninittee was in favor of amending. throughout the Pact. the
references to the Council of the Organization and to the Pan American Union.
to replacethem. respectiuely. with references tothe Permanent Council and io
the General Secretariat of the Ornanization of American States.
Having compiled the suggeste8amendments that the Inter-American Juri-
dical Committee agrccd upon. a chart w;is drawn up comparing the provi-
sions, iuxta~osinn the rccommended changes to the prcsent tex1 of the Pact.
That chart is attached.
The Inter-American Juridical Committcc examined the Pact of Bogotj
and rcndered its opinion on possible amendments with the obvious purpose
of co-operating inthe effort-Io make that instrument as viable as possible.
since it ought to be applied extensively and constructively within the inter-
American system.
If the suggested zimendments are tidopted. they would give the Americzin
Treaty of Pacific Settlement a new aspect.
It would become an inter-American instrument for the pcacelul settlement
of disputes. which would contain general restrictive standards concerning ils
applicability; it would outline. one by one, the procedures of gond offices. me-

diation, investigation and conciliation. the judicial procedure and the arbitral
procedure that the parties would have available to them: il would no1esiablish
anv order with resoect to the use of those methods, nor make recourse to thcm
compulsory; howcvcr, if any party should rcsort to the procedure of "investigii-
tion and conciliation" provided for therein and if at the outsct of this procedure
the parties so agree, if no solution to the controversy is found by means of
that procedure. any of the parties shall be entitled to recourse Io the Interna-
tional Court of Justice in which case the jurisdiction 01 the Court shall be
binding, in accordance with the first paragraph of Article 36 of ils Slatuie
(Article XXXII. as amcnded).
Moreover. under this ncw instrument, rccourse to the Iiitcrnational Court
of Justice would be open to the parties through recognition of the binding ANNEXES TO THE COUNTER-MEMORIAL. 441

jurisdiction ip~ofacro without a nccd for any special convention so long as
this Treaty is in effect. for al1controversies of a juridical nature specified in

the Treaty itself (Article XXXI).
If by agreement of the parties to a dispute for which no solution has becn
found by means of the procedure of Conciliation providcd for in the Treaty,
that controvcrsv is to eo 10 the International Court of Justice. then the case
u.,iiil,gi,I<*th.11Ci,~ri. III,iliich ;;i\cLI.~i.ri\Jiciic,nriiiiilhi l>iii~liiicir.i,ii-
trtn~rsich ,~fa~iyk~bid.ln :iccorJ:incc ~IIII~\r~icIc 36, piircnsr;iph1.01 II, >t;~lu~c
(,\rtirlc SXSll nc ;,iiicnJcd) I'hc prucc~lurc\oi (i<i<idOiilzcs. \Icili;aiion ;iiiJ

~\rl~~Iral~~ ~1il he :qrccd upctlihy lhc ~l:irtlcS ;ln(I.in the c;l>etbf(~61ncl!iatlon.
edch p;irly. rcp:ir:itcly. \h:ilh: ~.iilltlr.10 lurn 11)111~ I'crn1;incnlC'i,uncilIilr il
10 ci,iii.<ikc:iC<imrni\>ion (tf Ini'csti~.iiiuii:ind C'i1ncll1:itii,\riiclc X\')
-u~ ~ ~ ~ ~ ~ ~,~ould allow for awide ranee of oo-.ible iriendlv measures
on the part of a State or group of member States to settle a controversy pçacc-
fullv. whencver the uartics ta the controversv so consent. All of this is a clear
recoenition of the ielevance of that kind of oarticioation on the oart of the
~ ~~~-~~~~~
States. which is obsewed in the Pact now in force.
Finallv, in response to a motion made by Dr. Herrera Marcano. the Inler-
~merick ~uridical Commitlee aereed to make a eeneral recommendation 10
the effect that the tex1or the am&dments suggest~d in this document be duly
co-ordinsted with the texis of amcndmcnts adopted for the Charter of the
OAS and other inter-American instruments.

11should be pointed out that at the star1 of the meetings held ta examine
the Pact of Bogot5. al1of the members of the Commitlee were present until
August 17:Drs. Rubin and Vanossi were not present after August 20.and Dr.
Rabasa did no1 participate from August 26 and thereafter. All these indivi-
duals had to leave Rio de Janeiro.
The Committec wishcs 10 point out that Dr. Emilio Kah;isa cas1 his vote
for the adootion of al1 the recommendations made bv the Committee. and

.
report as wcli and fully concurred with itsrecommendations.
Consequently. after having approved the recommended amendments dis-
cusscd in this report and by the votes indicated therein. thc Inter-Anierican
Juridical Committcc prcscnts helow, in consecutive order. the draft amcnd-

ments to the Pact of BogotA:

GENBRAI.OBI.tCATIONTOSE'ITLEDISPUTESBY PACIFICMEANS

Arricle 1

The High Contracting Parties. solemnly reaffirming their commitments
made in earlier internationzil conventions and declarations. as well as in the
Charter of the United Nations. agree to refrain [rom thc threat or the use of
force. or from any other mcans of coercion for the settlement of their contro-
vcrsies, and 10 have recoursc al ;il1limes Io pacifie proccdures.

Arricle II

The High Contracting Partics shall make every effort to achieve the peace-442 BORDER AND TRANSBORDER ARMED ACTIONS

ful ~e~tlemen~ ~f~ ~ternational disoutes amone themselvcs throueh reeional- -
peaceful procedures. before submitting them to the General Assembly or 10
the Securitv Council of the United Nations.
This shall not he interpreted as an impairment of the rights and
obligations of the States partics under Article 52, paragraph 4, of the Charter

of the United Natioiis.
Consequently, should thcre be a controvcrsy between two or more signa-
tory States which. in the opinion of the parties. cannot be scttlcd by direct
negotiations through the usual diplomatic channels. the partics bind them-
selves to use the procedures established in the present Treaty. in the manncr
and under the conditions orovided for in thc followine articles.

In addition to the established in this ~ait. the parties to acon-
troversy may, by common agreement, opt for any other suitable and expc-
ditinus-means. .
Moreover. ;iny mrmber State or group of nicmber States of thc Organiza-
lion of American States, with the prior and express consent of al1parties to a
controversy, may assist in the manner they deem appropriate in rcsolving the

controversy peacefully.

Arriclr 111

The order of the pacific procedures established in the present Treaty does

not signify that the parties may not have recourse to the procedure which thcy
consider most appropnate in each case. or that they should use al1these proce-
dures, or that anyof them have preference ovcr others except as expressly pro-
vidcd.

Arricle IV

Once any pacific procedurc has been initiaied. whether by agreement be-
tween the parties or in fulfillmcnt of the prcscnt Treaty or a previous pact. no
other procedurc may bc commcnced until that procedure is concluded.

Article V

The aforesziid procedurcs may no1 be applied to matters which. by their
nature. are within the domestic iurisdiction of the State. If the parties arc no1
in a.-~~men~ a~ ~o whether the controversv concerns a mattir of domestic
juri\diction. thi5 prr.limin;ir\ ilucriion ,h;ill hc ,iihniiticd 10 d:ciiion hy the

Intcrn.~ti<in;ilCourt ,>iJUSIICC .t tlic r~qucsi O( an) i!fIhl: pi~rI~c\.

Article VI

The aforesaid procedures. furthermore. may not be applicd to matters

already settled by arrangement between the parties, or by arbitral award or
by decision of an international court, or which are governed by agreements or
treaties in forcc on the date of the conclusion of the present Trcaty.

Article VI1

The High Conlracting Parties bind themselves no1to makc diplomatic rep-
rcsentations iiiorder to protcct their nationals, or to refer a controvcrsy to a
court of international jurisdiction for that purpose, when the said nationals ANNEXES TO'THECOUNTER-MEMORIAL 443

have had available the mïans Io place their case before compeient domestic
courts of the rcspcctivc Stale.

Anicle Vlll

Neither recourse to pacifie mcans for the solution of controversies. nor the
rec«mmcndation of their use, sh;ill, in the case of an armed attack. be ground
for delaying the exercise of the right of individual or collective self-defense,

as providcd for in the Charter of the United Nations.

PROCEDURES OFGOODOFFICES AND MEDIATION

Article IX

The procedure of good offices consists in the attempt by one or more
American Governments or one or more eminent individuals no1 a varty to
the controversy. to bring ihc parties togethcr. so as to make it possible to
reach an adequate solution between themselves.

Arricle X

Once the parties have bccn brought together and have resumed direct ne-
gotiations, no further action is to be taken by the State or individuals that
have offered their good offices or have acccpted an invitation to offcr them;
thcy may. however, by agrccmcnt between the parties. be present al the nego-
tiations.

Article XI

The procedure of mediation consists in the submission of the controversy
to one or more American Governments no1 parties to the controvcrsy. or to
one or more eminent individuels not a party tu the controversy. In either
case. the mcdiator or mediators shall be chosen by mutual agreement be-
twecn the parties.

Article XII

The functions of the mediator or mediators shall be to assis1 the parties
in ihc seitlement of controversics in the simplest and most direct manner,

avoiding formalities and seeking an acceptable solution. No report shall be
made hy the mediator and, so far as he is conccrned, the proceedings shall be
wholly confidential.

Arricle Xlll

In the event that the High Contracting Parties have agreed 10the proce-
dure of mcdiation but are unable 10 reach an agreement within Iwo nionths
on the selection of the mcdiator or mediators, or no solution Io the contro-
vcrsy has been reached wiihin rive months ;iller mediation has hcgun, the444 BORDER AND TRANSBORDER ARMED ACTIONS

parties shall have recourse without delay Io any onc of the other procedures
of peaccful settlement estahlished in the present Treaty.

Arricle XIV

The High Contracting Parties may offer their mediation, either indivi-

dually or jointly, but they agree not to do s<~while the controversy is in pro-
cess of settlement by any of the other procedures established in thc presçnt
Treaty.

PROCEDURE OF1NVESTlGATlON AND CONCILIATION

Article XV

The procedure of investigation and conciliaiion consists in the submission
of the controversy ti>a Commission of Investigation and Conciliation. which
shall be cstablished in accordance with the provisions established in subse-

quent articles of the present Trcaty. and which shall function within the limi-
tations prescribcd thercin.

Arricle XVI

The party initiating the procedure of investigation and conciliation shall

request the Council of the Organization of American States to convoke the
Commission of Investigation and Conciliation. Thc Council for ils part shall
take immediate steps to convokc it.
Once the requçst to convokethe Commission has been received, the contro-
versy bctwcen the parties shall immediately be suspended, and the parties shall
refrain from any act that might make conciliation more difficult. To that end,
atthe requcst of one of the parties. the Council of the Organizatiun of Ameri-

can States may. pending the convocation of the Commission, makc appropri-
ale recommendations to the parties.

Article XVll

Each of the High Contracting Parties may appoint four individuals held in
high regard as to their impartiality. competcncc, and sense of honor and willing

to accept the functi<insof conciliator. Only two of these shall be nationals of
that S~ ~e~ ~ ~ ~
,\n? <ifihc Cuiiir:ictin-. i'artieiiis!rcpldcc th< in1liiiilu:ilr ihcv dcsigii:itr.
'l'lic;xppi>iiitriicn:iiiJrcpl;iccmcnt\ çh:111 hc rr'ei;tcrc~lwith the Gener;il
~ecretariüi of the oreaLkatcon of American States.
In th: :ihscncr'oi su:h :ilip<rininicnt..it\h;,ll hc unJcrit<i<iJ tIi:ii tlic St.itc

I\ ;ilipi~inlin>t!he nicinhcrsi>Iils ii3iioii-l rroup irom ihc l'ermcincni Court iri
~rbiiration%f The Hague.

Arricle XVlll

Using the list of individuals referred to in the preceding paragraph. the
General Sccretariat shall form a Permanent Panel of American Conciliators. ANNEXES TO THE COUNTER-MEhlORIAL 445

Article XIX

ln establishing the Commission of lnvestigation and Conciliation referred
to in Article XVI. the following proccdures shall be followed:

((r)Each party inay designatc one or two membcrs from the Permanent
Panel of American Conciliators. who shall no1 be nationals of the ap-
pointing Statc;
(h) These two or four members shall in turn sclcct. from the Pcrnianent
Pancl. a third or fifth concilintor. as the case m;iy he. who shall no1 be a
national of cithcr of the parties;
(c) If within thirty days of having bcen notified of their selçction. the mem-
bers referred to in subparagraph (a) are unable to reach an agreement on
the choicc of the third or fifth member. each one shall separately draw up
a lis1of conciliators. drawing from the Permanent Panel and listed in the
order of prefercnce; after comparing the lists sciprepared, that mcmber
who first recçives a majority of votes shall be declarcd selected. l'hc indi-
vidual so selccted shall serve as Chairman of the Commission.

Arricle XX

In convening thc Commission of lnvestigation and Conciliation. the Coun-
cil of the Organization of Amcrican States shall dctcrmine ihe place where
the Commission sh;ill meet. Thcrcafter,the Commission may determinc the
place or places in which it is ti, funciion. taking in10siccount the best facilities
for the perforniance of ils work.

Article XXI

When more than two States arc involved in the same controversy. the
Statesthat hold similar points of view shall be considcred as a single party. If
thcv have diffcrcnt interests thcv shall bc cntitled to increase thc nuinber of
co~ciliators in order that al1 parties may have cqual representation. The
chairman shall be elected in the manner set forth in Article XIX.

Article XXll

Ltshall he the duty of the Comniission of Investigatioii and Concili;ition to
clarify the points in dispute bctween the parties and to endeavor to bring

aboui an agreement bctween thcm upon~mutually acceptable ternis. The
Commission shall institute such investigations of the facts involved in the
controversy as itmay deem nrcessary for the purpose of proposing accept-
able bases of scttlement.

Arricle XXIll

It shall be the duty of the parties 10facilitate thc work of the Commission
and to supply it. to the fullest cxtent possible. with al1useful documents and
informatibn.-and also to use the means at their disoosal to enable the Com-
mission to sunimon and hear witnesses or experts and perform other tasks in
the territories of the parties. in conformity with their laws.446 IIORDER AND TRANSBORDER ARMED ACTIONS

Article XXIV

I>uring the proceediri~, hciorc the (.'~~riimi~~iiin t.c p:lrtici shiill hc
rcprc,cntcd Iiy pl~~tipolc.riti:ir)JcIcg:ilcs Ur by ascni~. who sh;,ll ,crvc :t$in-
icriii~~Ji:~ric~ciwccn iheiti and ihc C\inimi.\it~ii 'l'hc n:irtics ;ind ihc Coni-

mission may use the services of technical advisers and éxperts.

Arricle XXV

The Commission shall conclude ils work within n period of six months
irom the date ol its installation: but the parties may. by mutual agrecmcnt.

extend the period.

Arricle XXVl

If, in the opinion of the parties, the controversyrelates exclusively to ques-
tions of fact, the Commission shall limit itself to investigating such questions.
and shall concludc its activities with an appropriate rcport.

Arricle XXVII

If :in :tgrccmcntIS rcachcd hy concili:itiun. ihc fincilrcpiortof ihc Coriiniis-
>ii11ch:ill hc limitc<lt,,thc tcui of th^..igrr~,mcni :ind 511:~Ihc puhlishcd :iitcr
its transmittal 10 the parties, unless the parties decide otherwise. If no agree-

ment is reschçd. the final reoo.~ s~ ~l contain a sumniarv of the work~ol ~ ~ ~ ~
Commission; it ;hall he delivered Io the parties, and shail be published aiter
the expiration of six months unless the parties decide otherwise. In both
cases. ihe final report shall be adopted bya majority vote.

Arricle XXVIll

The reports and conclusions of thc Commission of Investigation and Con-
ciliation shall not be binding upon thc parties, either with respect to the statc-
ment of facts or in regard to questions of law, and they shall have no other
character than that of recommendations submitted for the consideration ol
the parties in order tci facilitate a friendly settlement of the controversy.

Arlicle XXIX

The Commission of lnvestigation and Conciliation shall transmit to each
of the parties. as well as to the Pan American Union, certified copies of the
minutes of its proceedings. These minutes shall not be published unless the
parties so decide.

Arricle XXX

Each member of the Commission shall receive financial remuneration, the
amount of which shall be fixed by agreement betwcen the parties. Il the par-
ties do no1agrcc thcreon, the Council of the Organization shall determine thc
remuneration. Each government shall pay its own expenses and an equal
shnre of the common expenses of the Commission, including the aforemen-
tioned remunerations. ANNEXES TOTHE COUNTER-hlEMORlAL 447

CHAPTERFOUR

JUI)ICIAI.PROCEDURE

Article XXXl

ln coniorm~t! wotn ,\rt~cIc36, pnr<~<rxph2. ,~f~hcSt;~tutcof thc Intcr~i:!.
tionnl Court or .lu>tlcc.tlic Ilich Ci1n1r:ictincI'sriics iIr.cl:trcth:il the\ rccog-
niz~. in relation to anv othcr Àmerican Stati. the iurisdiclion of the Court as
compulsory ipsofocro' without the necessity of any special agreement so long

as the present Treaty is in force. inl disputes of a juridical nature that arise
among them concerning:
(rr) The interpretation of a tre;ity;
(h) Any question of international law:
(c) The existence of any fact which, if established, would constitute the

hreach of an international obligation;
(cl)The nature or extent of thc reparation to be made for the brc;ich ofan
international obligation.

nrticleXXXII

When the proccdure of conciliation established in accordance with this
Treaty does not lead to a solution. either of them shall bc 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 juris-
diction in accordance with Article 36, paragraph 1. of said Statute.

,lrricleXXXlll
(Drlerc~l)

Article XXXIV
(Dclered)

ArticleXXXV

(Drlercd)

Article XXXVl

(Delele(l)

ArricleXXXVII

(Delere(1)

CHAITERFlVE

PROCEDUREOFARBITRATION

Arricle XXXVIII

The High Contracting P;irtit:s niay, if they so agrec, submit to arbitration448 BORDER AND TRANSBORDER ARMED ,\CTIONS

difierences of any kind, whether juridical or not. that have arisen or may arise

in the luturc between them.

Arricle XXXIX

(Delererl)

Article XL

The parties niay hy mutual agreement establish the Tribunal in the manner

they deem most appropriate; they niay even select a single arhiter. designa-
ting in such case a chief of state. an eminent jurist. or any court of justice in
which the parties have mutual confidence.

Arricle XLI

If the nroccclure set forth in the or.cedine a-ti~ ~ ~s not carried oui within
two months of the date of thc agreement. each party shall name one arhiter of
recognized competence in questions of international law and of the highest in-
tezritv. and shall transmit the desienation to the Pcrnianent Council of the Or-
g;inl/.iii<in uf ,\mr.rican Si:ilcsr\i ihd s;iiiic tirne ctch ptirl) sh:ill prcrcni<ihc

Ci>uni.il 3 licl01 icn jurirls cha~re~iircm :inionfi iht~~eon the ~CIIC~:~~ p;incl of
niznihcr* of ihc t'criii:<n:nt C\>urt \>f ,\rhitrnti,,n<,fThe tl;irue whu JOn$,i hc-
long to ils n;itional group and who ;ire willing to be membcersof the Arbitral
Tribunal.
The Council of the Organizaiion shall, within the month following the
presentation of the lists. proceed to establish the Arbitral Tribunal in the fol-

lowing manner:
(a) If the lists presented by the parties contain three names in common. such

persans. together with the two directly named hy the parties. shall con-
stitute the Arbitral Tribunal;
(b) In case these lists contain more than three names in common, the three
arbiters needed to com~letc the Tribunal shall be selected bv lot;
( a In tlic circurii~i.incci ciiii\.igcin ihc tivo prcccJiii~ cl;iiisc~s.th: fi\: :trhi-

i~.r\ ~I~~~~gndi cd311 chi,i,sr. on< of thcir iiiiiiiI>.isprc\iJirig i,llircr:
(ri)If the lists conlain only two names in common. such candidates and the
two arbiters directlv sëlected bv the oarties shall bv comrnon aereement
ch,>i>.;îihc filih ;irl;iicr. whi, sh;ill pr;,,iJc civer ih~Trihiiiiii.the ch,ii<c
\h.ill iIc\?il\.c upiln:ajurisi on the ;ilorc>:sid ~ciicr:il p:incl.IIihc I1crin:t.
ncni Cuuri ,)Ir\rI~itr.~i~~~,iiThe l~I~,~uc ~li~~II:!>n<Bihccn i~icIii.lcJ in llic

Ii,i\ Jr~t\$ii up hy th: p;triic\:
(VI Il ilic 114sC~~II~.IIulll! one ti;~nicin cuninicm, 1h;lI pcrxtn ~11:tIh l c;,niem.
Iicr ilic 'frihtiii:;inJ ;inoihcr ii3iiir,h.ill I>cchuriii hy l8ifriiiii :>muiig
tlic eighiccn 1uri;is rem:tiiiinp <in thc iihai\,c.niciiiii~nc.il li\i>. I'hc prc>i-
ding c,lficcr sh;illI>cclccicd in ;iccorJ.incc uiih ihc pr<ircJurc csi:ihli~hcJ
in the preceding clause:

(f) If the lists contain no names in common. one arhiter shall bc chosen by
lot from each oi the lists: and the filth arbiter, who shall act as presiding
officer, shall be chosen in tht: m;inner previously indicated;
(8) If the four arbiters cannot agree upon a fifth arbitcr within one month
after the C~~uncilof the Organization has notifiïd them of their appoint-
ment. each of them shall scparately arrange the list of jurists in the order ANNEXES TO THECOUNTER-MEMOKIAL 449

of their prefcrcnce and, aftçr comparison of the lists so formed, thc per-
son who first ohtains a majority vote shall bc declared elected.

Arricle XLIl

When more than two States are involved in the szime controvcrsy. the
States defending the same intcrests shall he considered as a single party. If
they have opposing interests thsy shall have the right to incrcase the numher
of arbiters so thzit al1parties miiy have equal rcpresentation. The prcsidiiig
officer shall be selected by thc nicthod established in Article XL.

Arricle XLIII

The parties shall in each case drew up a special agreement clearly defining
the specific mattcr thatis the subjcct of the controvcrsy. the seat of thç Tribu-
nal. the rules of procedure to be observed. the period within which thc award
is to be handed down, and such other conditions as ihey may agrcc upon
among themselves.
If the special agreement cannot be drawn up within lhrecmonths of the date
of the formation of the Tribunal. it shall be drawn up by the International
Court of Justice through summary procedure. and shall be binding upon the
parties, unless lhc parties instruct the Tribunal to draw up said agreement.

Ariicle XLIV

The parties may be representcd before the Arbitral Tribunal by such per-
sons as they may designate.

Article XLV

(Deletr<l)

Article XLVI

The award shzillbe accompanied by a supporting opinion. shall be adopted
hy a majority votc. and shall be published after notification thereof has becn
given to the parties. The dissenting arbiter or arbitcrs shall have the right to
state the grounds for their dissent.
The award. once it is duly handcd down and made known to the parties.
shall settle the controversy definitivcly, shall not be subject to appcal. and
shall be carriçd out immediately.

Arricle XL VI1
Any differcnces that arise in regard 10 the interpretation or execution of
the award shall bc submittcd tothe decision of the ArbitralTribunal th;it ren-

dcred the awzird.

Within a year after notification thcreof. the award shall be subject t» review
by the same Tribunal at the request of one of the parties. provided a pre-
viously existing fact is discovercd unknown ta the Tribunal and ta thc party450 BORDER AND TRANSBORDER ARMED ACTIONS

requesting the revicw. and provided the Tribunal is of the opinion that such
faci might have a decisive influence on the award.

Article XL IX

Every member of the Tribunal shall receive financial remuneration, the
amount of which shall be fixed by agreement between the parties. Each
Govcrnment shall pay ils own expenses and an equal share of the common ex-
penses of the Tribunal. including the aforementioned remuncrations.

Article 1.

If one of the Hieh Contractine Parties should fail to carry out the obliea-
lions imp<isr.diipoRit hy ildccisionol thc Intern;#tioiial ~ou;l oi JU\IICCor-h!.
;anarlxtr:il :ward. thc othcr p,triy cjr11:triic.c~>nccrncd>h;~ll,hefurc rcsoriin~
ICIthe Sciurii~ C,iuncil uf ihr Ilnitcd S;iiii~ns.r>rop,i:ihl~clinr <ifCiiii\ul-
tation of ~inkters of Foreign Affairs 10 agree Ùpon appropriateÏneasurcs to
ensure the fulfillment of the judicial decision or arbitral award.

CHAPTERSEVEN

Article 1-1

The parties concerned in the solution of a controversy may. by agreement,
pelition the General Assembly or the Securiiy Council of the United Nations
to request an advisory opinion of the International Court of Justice on any
juridical question. They may also request one of the Inter-American Juridical
Commiltee.
In both cases, the petition shall be made through the Pcrmanent Council of
the Organization of American States.

Arricle LI1

The present Treaty shall be ratified by thc High Coniracting Parties in
accordance with their constitutional procedures. The original instrument shall
be deposited in the Pan American Union, which shall transmit an authentic
certified copy to each Governmenl for ihe purpose of ratification. The instru-
ments of ratification shall be deposited in the archives of the Pan American

Union, which shall notify the signatory governments of the deposit. Such noti-
fication shall be considercd as an exchange of ratifications. ANNEXES TO THE COUNTER-MEMORIAL 451

Arricle LI11

This Treaty shall comc in10effect beiween the High Contracting Parties in
the order in which they deposit their respective ratification.

Article LIV

Any American Statc which is no1 a sign;itory to the present Treaty, or
which has made reservations thereto, may adhcre to it, or may withdraw its
reservations in whole or in part. by transmitting an official instrument to the
Pan American Union. which shall notify the other High Contraciing Parties
in the manner herein established.

Article LV
Should any of the High Contracting Parties make reservations concerning

the prcseni Treaty, such reservztions shall. with respect to thc Stiite that
makes thcm, apply to al1signatory States on the basis of reciprocity.

Article LVI

The present Treaty shall remain in force indefinitely. but may be denoun-
ced upon one year's notice. at the end of which period it shall cease to be in
force with respect to the Stzitedenouncing ii. but shall continue in force for
the remaining signatorics. The denunciation shall be addressed to ihe Pan
American Union, which shall transmit it to the other Contracting Parties.
The denunciation shall have no effcct wiih rcspect to pending procedures
initiated prior to the transmission of the particular notification.

Arricle LVI1
The present Treaty shall be registered wiih the Secretariat of the United
Nations through the Pan American Union.

ArticleLVIII

As this Treaty comes into eIfect through the successive ratifications of the
High Contrzcting Parties, the following treaties, conventions and protocols
shall ccase to be in force with respect to such pariies:
1. Treaty to Avoid or Prevent Conflicts betwcen the American States. of May
3. 1923;
2. Gcneral Convention of Inter-American Conciliation, of January 5. 1929;
3. Gencral Treaty of Inter-American Arbitration and Additional Protocol of
Progressive Arbitration, of January 5, 1929;
4. Additional Protocol to the General Convention of Inter-American Con-
ciliation. of December 26. 1933;
5. Anti-War Treaty of Non-Aggression and Conciliation. of October 10.

1933;
6. Convention to Co-ordinate. Extend and Assure the Fulfillmeni of the Exist-
ing Treaties between the American States, of December 23. 1936;
7. Inter-American Trcaty on Good Offices and Mediation, of December 23.
1936;
8. Treaty on the Prcvcntion of Controvcrsics, of December 23, 1936.152 BORDER AND TRANSBORDER ARMED ACTIONS

ArticL leX

The provisions of the foregoing Article shall not apply to procedures al-
ready initiated or agreed upon in accordance with any of the above-men-
tioned international instruments.

ArticL lXe

The present Treaty shall be called the "PACT OF BOGOTA".

Rio de Janeiro. August 29. 1985.

Inter-American Juridical Committee,
Rio de Janeiro.
Brazil.

EXP1.ANATION OF THE VOTE OF DR. MANUEL A. VIEIRA

1 have voted in favor of the Committee's suggested amendnients to the
Pact of Bogot.6.1wish. however. to make certain comments on thcm.
First, the limitedamount of lime the Committee had to study that impor-
tant suhiect and the delav with the resoective documentation. particularlv the
commcnts oi the ~ecretariat. essentiai to our studies. are factOrs that should
he taken into account. It must also be considcrcd that our Conimittec has Io
deal with other topics on our agenda
With reeard to'the content Of the doc~ ~ ~ ano..ved bv the Committee.
1would liki~lo address certain points specifically. ~lthou~h these have bee"
mentioned in the minutes, in my .pi.ion they warrant an explanalion at this
time.
First, I wish to point to Article V. which 1would end with "interna1 juris-
diction".
Second, in Article VII. on diplomatic protection, 1would have preferred
an alternative formula. such as the following:

"(A) claims of nationalsmay be subject to thc mechanism of this Treaty:
(i) in the event ofe denial or delay ofjustice hy the respective States:
(ii) when thcy have not had access to the respective courts:

(B) claims hy nationals shall be governed by international law;
(C) the Contracting Parties shall consider the possibility of establishing
appropriate means to scttle these disputes and determine the perti-
nent procedurcs for dealing with them lawfully."
In Article XII. 1 proposed eliminating the confidentiality of the pro-
cedures, since on several occasions, puhlicity of certain actions has had some

benefit, as in certain cases that have arisen in thc United Nations.
Finally. 1should note that I opposed inclusion of the Committee in Article LI,
which empowers it 10 issue advisory opinions.This is one of the powers granted
to the International Court of Justice, an organ made up of judges, or ifyou wish,
with a spccificjiidiciary functi-n both judicial and advisor- while the Com-
mittec is niadc up of junsts, ils functions are far from being judicial.

Rio de Janeiro. August 29. 1985.
Manuel A. VIEIRA. ANNEXES TOTHE COUNTER-MEMORIAL 453

Inter-American Juridical Comniittee,
Kiu de Janeiro,
Briizil.

EXPLANATION OFTllE VOTEOFDR.LUIS HERRERA MI\RCANO.

FROMVENEZUELA

1have voted in favor of the preceding Opinion because 1consider that. on
the whole, it makes useful proporals for amendment of the American Treaty on
Pacifie Scttlement (Pact of Bogoti). Neverthelcss. I dissent from that docu-
nient in respect of the articles shown below. in which 1have italicizcd the word-
ing that 1propose:

Arricle Il

First paragraph: samc as the Committee's wording.
Second paragraph: samc as the Committee's wording.
'l'hird paragraph: Consçqucntly, in the cvent that a controvcrsp arises
betwecn two or more signatory States that cannot bc settled by direct nïgo-
tiations throueh the usual di~lomatic channels. the osrties bind themselves Io
use the procedYurcscstablishédin the prcscnt ~reati. in the manner and under
the conditions provided for in the following articles.
Fourth paragraph: samc as the CommiEee's wording
Fifth paragraph: sarne as the Comrnittee's wording.

Arricle V

ï7represcnr Treary slroll tror be applieto niatters that. by their nature. are
within the domestic jurisdiction of the State. Upori rirfifying 11ri.sTrefliy, or al
oriy ritfie rliereafter, eacli Srarenfoy declare rhrrrir acceprsthe corrrl)irlsory jrrris-
dicrion of rlzeInrerriiriion(rl Corrrr of Jirsrice ro (leci</ewherher o11tfiarrer
is,hp ils nirrrrrr, ivithin rlie (/oi~iesricjiirisofa Srare.

Article VI

17represerlt Treary ,slrnll trol ~ippto mattcrs already settled hy arrange-
ment between the parties, or by arbitral award. or by decision ol an interna-
tional court, or which are governçd by agreements or trcatics in force on the
date of rlre conclr~sioof the present Treaty.

Arlicle VI1

Arry corirroversy herweerrrl~epurties rliut corrcerrlsrhe exisierrceor tioneris-
rerrceof rr cciser,f deniri1of jirstice, shall be goverrred by rhe i?rovi,siorrsof the
Infer-Arr~erican Converilioir on Hirman Kighr.~.

Arricle XII1

(Delered)

Article XV

First paragraph: same as the wording proposïd by the Committce454 BORDER ANI) TRANSBORDER ARMED ACTIONS

Second paragraph: Upoti rarifying the preserrr Treory or or arry rinie ihere-
afrer, eoch Sraremay declare rhar ir acceprs,o,i rlre basis of reciprociry, rhe obli-
gaIion Io sirbniir ro corrciliaiion, brised on rhe remis of the prer-enr Treary, any
coiirroversy rhar niay (irise berweenir and arry orher StareParry.

Arlicle XXXl

Upon rarilving rlir present Treary or al any rinie rhereafrer. eacli Srareniay
declare rlial it ucceprs, on dre basis of reciprociry, as binding ipso facro. the
jurisdiciion of the Inter-American Court of Justice with respect to any
controversy that has been suhmitted to conciliation under the terms of this
Trcaty and that has not becn resolved, without the need for any spçcial inter-

vention so long as this Treaty remains in effect:
(a) The interpretation of a treaty:
(b) Any question of international law:

(c) The existence of any faet whieh, if esiablished, would constiiute the
breach of an international obligation;
(d) The nature or extent of the reparation to bc made for the breach ofan
international obligation.

Arricle XXXll

Upon rarifying rhepresenr Trearv or ar atiy rir~ierhereafrer, each SrareParry
trray ileclare rhar iracceprs.on rhe basis of reciprr~city, as binding ipso facto,
rlre irrrisdicrion of rlre I~irerriarional Coirrr,of J~ ~ ~ce~wirhoiir rhe needfor an"
sprciol interveniion so Ir~tigas rhis Treiiry re,nai,rs iri effecr, wirlr respecr ro any
conrroversy that, ha vin^ been srrbnrirted ro conciliarion i~nderthe terms of this

Treary, /rai nor beer~resolved

Arricle XXXVIII

Upori rarifying rhr preseilt Treory or al aiiy rinie rhereafter, eacli SrareParty
rnoy ileclare rhar il acceprs,on rhe basis of reciprociry, the obligarion ro sebnzir

ro arbirrarion, in acc~rdance wirh rhefollo~ving provisions, any co~rrroversyro
ivhich rhe presenr Treary opplies.

Article XLI

To insert. following the phrase "of thc date of thç agreement", the fol-

lowing text: "or fro~rr the ri111eivhich a Co,rrracrirrg Parry rhar hm previoirsly
accepred rhe obligarion ro sr~bniir a dispiire ro arbirratiun infor~ris rlie orlrer
Parry, rliar has acceprrd ihe sanie obligarion, itr ivriring, of irs for~nal decision
ro proceed IO arbirrariorr".

Addirional Arricle

Nothing contained in thc present Treaty may be interpreted as a limitation
on or replacement of the provisions of the American Convention on Human
Rights, signed at Sari José,Costa Rica, in 1969.

The reasons why 1differ from the majority opinion on the points indicated
were expressed in delail al the Commiitee's scssion. and appear in the sum-
mary minutes. They may be summarized as follows: ANNEXES TOTHECOUNTER-MEMORIAL 455

1.The Committee's draft retziins acceptancc of the compulsory nature of

recourse to conciliation and to the International Court of Justice as the only
solution. 1ihink that if the purpose of this effort is to obtain widespread rati-
fication by the American States. in so far as possible without reservations, it
is not possible to ignore the fact that it is precisely that obligatory character
that was the subject of various reservations and the reason why some coun-
tries have no1ratified the Treaiy. For this reason. 1consider il very doubtful
that the amendment proposed by the Commiitee willsubstantially change the
uns;itisfactory status of the Treaty. which is prccisely the reason adduced for

the amcndmcnt.
In contrast. the Committee's pro. .al eliminatcs any pos.i.ility that ;iSiate
Party may accept in a prior and general way the obligation to rcsort to arbitra-
tion. and thus would undermine the system now in effect among many States.
For ihccr. rc.i>on\. I have prupod :I~ybtcn)oi r)pi~<inca sll;iu>esreylirding
thr: i>hlig~iion10 rcsiiri tu c~~nsili:iiii~.c Intcrn:iti<,ii:<ltiurt iii Justice. ;lnJ
:irhitration. 'lhc ,)\ir.iiproposcd wr~ulilm;ikc p<>ssil)lc
~ ~
(O) Rzitification without suhstantial reservations by al1the member Silites of
the Organization of American States;
(h) The establishment of a network of acceptances among the parties that
would achieve. in each bilateral relationship. the maximum degrce of com-
pulsory application that the States are in fact willingto accept nt present;
. ..
ill~
1c.j Thc prospect thiii in ihc fuiurc ilie nuniher i~f.tcicptsiicc~s01 th:ii com-
puIror!. ;ipplii.iii<inu,>uld ~r:~iIii:iinirciisc. uiiiil some d.i! th< iIc~i~l,,-
r,rigo~,>f~IIC;i.iriii?liir\\tcin <>fp;iiilic rciilem~~niih;it ilie ;,ulhùr\ of the
Bogoti Pact prop~sed,.with mo;e idealism thzinrcalism, may be attained.

In this regard, 1 consider the Inter-American Court of Human Rights a
good example. An optional clause on ils jurisdiction has been gaining accep-
tance by the States Parties to the Pact of BogotA.
II. 1haveproposed the deletion of Article VI1from the present text brcause
1 consider that the institution of diplomatic protection, a source of so many
abuses in the past, is completely obsolete in general international lawcurrently,
and ihat it should no1be recognized in an inter-American treaty,even if oiilyto

limit il. The ostcnsiblc justification for this juridical exception, i.c., ihc protec-
tion of a State's nationals when their fundamenial rights are violated and they
are denied justice by anoiher State, lost ils rationale in this hemisphere when
the system of the American Convention on Human Kights (Pact of San José)
was established. since it provides an effective system forthe settlement of any
dispute that might arise ovïr such matters.

Rio de Janeiro, August 29, 1985.

Luis HERRERAMARCANO.

Inter-American Juridical Committee,
Rio de Janeiro.
Brazil.

EXPI.ANAT1OO NFTl-IEVOTE i3FDR.ROBERT0MACLEAN UCARTECllE

1would have preferred, zisreflected in the Opinion of the Committee and
the corresponding minutes, not Io include the new second paragrnph IO Ar-456 BORDER AND TRANSBORDER ARME11 ACTIONS

ticle II that reads: "This provision shall not be interpreted as an impairment

of the rights and obligations of theSt;itcs Parties under Article 52, paragraph
4. of the Charter of the United Nations." 1think it would have been wiser to
reler simolv IO Article 52. althoueh 1 consider the mere inclusion of il un-

dissenting vote in ~ugusl 1984.
1 also think. as indicated in the corresponding minutes and the Opinion
approvcd, that, to bc consistent with Article 25 of the Charter of the OAS,
the word "arises" should no1 have hccn replaced by "cxists" or "there is".
This latter term is vague and imprccisc and could conflict with other articles

of the Charter.
1 also considcr the explanation given regarding Article VI inappropriate
and unnecessary. It is nierely a comment and does not examine or discuss as it
should a matter that already has been examined and discusscd in interna-
tional law. especially in the Vienna Convention on the Law of Treaties. Fur-
thcrmore. it docs no1 DroDose anv amcndmcnt Io the article. which in the
unanimo"~ view of thc'membcrs if the Committee, should rcmziin as is.
However, my chicf concern, consistent with thc Committee's decision
adooted at ils sessioii in Aueust 1971.and reilected in ils discussions and the

cor;esponding minutes. is tlhe viability of the Pact. In my opinion. the ap-
proved amendments are cosmetic and stylistic. and without diminishing their
imoortance. 1think that most could he avoided bv a statement of reservations
orby interpretation. The principal impediment io the full functioning of the
Pact of Bogoti niust he sought by other mcans. in the political will of the par-
tics. Otherwise, any attempt at logic or style is pointless. The social forcc and
effectiveness of Law does no1lie in the grammatical corrcctness of a tex1or in
thc clarity and lucidity of the logical structure of a rule, but rathcr in the col-
lective political will to accept a set of rules in an ongoing search for peace

based on respect for the Law.

Rio de Janeiro. August 29. 1985.

Roberto MACLEANUGARTECHE.

Inter-American Juridical Committee.
Rio de Janeiro.

Brazil.

NATORYSTATES AS WEI.1. AS TI113KBASONS SOMSE TA'I'EMS lGHT HAVE FOR
SI K I 1 I l 1 1 1 l 'Il ll'll:llSl \vll.'lllK ,11111 Kl:C1>
1'0 Hl:&l,\l)E1" lll,\l13~'l'KLJ\lI~h'Illl:SSlKI:I'IS\'l~\llll.ïl'Y

Rapporteur: Dr. Galo Leoro F.

The Inter-American Juridical Committee, al ils meeting on August 5.
decided to olacc the studv of the Pact of Boeuta. within the e-idelines indi-
catcd abovc, as the first topic on ils agenda. in order to rcspond, in so far as
possiblc, to the rcquïst made of il in this respect by the Permanent Council of ANNEXES TO THE COUNTER-MEMORIAL 457

the OAS. All this is part <if an undçrtaking of the highest importance, one
that ihc General Assembly rcinstituted through resolution AGlKES.745,
adopted in November 1984.al ils fourteenth regular session. The Conimittec
also decided to appoint the undcrsigncd as Kapporteur on the iopic. In view

of what litilc lime the Commitiec had for meeting the Council's request. ii
also dccided that the Rapporteur would begin and develop his work through
oral statements during the meetings. as in fact he did. beginning on Aiigust 6.
The summarv of those statcments aooears in the corresoondine minutes.
Givcn thé special significance &'the topic within the va; program of
changes in the inter-Amcrican system that the Organization has outlincd and
so ;i;to oui the material in moie svstematic ordër. the Raooortcur, ,lt that
[hi, sumk;iry rcpibri .hi>uld hc dr.iitc~ It hrings i<isctl~crthc irlc.is t1i.iiicrc
c\prcs\eJ nt tIi<i\cnicciiiigs. InipcirinntJi~cussionsncrc hcld ;it>~~u 1i11v.irii,ur
t~mic..undcr \iudv. which WIIIhc ;in .iddiiii~naland riiors c~inrirlr.rnl>lc iuurcc

of'referencefor the study of the Pact of BogotA.with a view to determining its
viahility and the advisability of timending il.

At various points in lime. the member States of the OAS have sought re-
forms in the inter-American system.
The system developed within a legal framework established by resolutions
passed by the International Conferences of American States. Many of the
declarations from those confcrences contain principles that point up a con-
stant effort ta surmount problcms. The most significant reform made in the

system was the signing of the Charter of the OAS in 1948whcn an organiza-
lion th;ii had developed ovcr the course of severzildccades was contractually
instituted. That contractual transformation was the climax of an essential un-
dertaking that began wiih the Inter-American Treaty of Reciprocal Assis-
tance, adopted in Rio de Janeiro in 1947,and culminated with the Amcrican
Treaty on Pacifie Settlement or "Pact of Bogoii" and the oiher invaluable
intcr-American instruments that address social rights, human righis, eco-
nomic relations, al1 on a substantive and structural scale thai was without
orccedeni. After 1945 in order to survive the reeional svstem had to be insti-
iuted contractually and adapt itsçlf to the high& intekational stand;irds of
the United Nations Charter.

Flere in Rio de Janeiro in 1965.the Second S~ecial Inter-Amcrican Con-
i~~rciiccwould I~cgiiiciiiiris tiircdirc~t the intcr-t\incri~.;in \y\icm i<ia.ird
iiiurc :imhiiii~u, :<,.ilfi~rthe cii>n<imii.inJ vi~ililJcvcl~~iiiiiiiiiifiis ,\nicri-
can Slaici II a.~>ul~ ;illco :idi>pirc\c~lutionXII1 Io "\ircncihcn ihc iapai.lv . 11i
the Organization to givc the member Stateseffective aid i'nthe peaccful sçttle-
ment of their disputes", giving the Council of ihc Organization the ncccssary
powcrs. The Protocol of Buenos Aires, signed in 1967as a result of the nçw
direction adooted in Rio. brouelit certain normative and structural chanees -
18) ihv Org:a~li/;~ti~~n II. m,~kc\ ihc C oun:iIs c~~u:~ilr~~i~iliic Icg:il st'tn~lpoinl
;niidch:insc.\ ihc n.iiiic <II.omc of rhc i>r#;in But II J,iîrnit1 .,lierih~ h;i~
principles The economic and social standards werc enlarged upon. as were

those conccrnineeducation. science and culture. with the emohasis on ~ ~ ~on-
ment. The ~ernuanent Council was given the same powçrs as thosc given ta tic
Inter-American Peace Committee. in its 1956Statutes, in effect at that lime.
In 1973. another reform movement would lead to the establishment of
Cl;.l:Sl, spcci,#lwilinliticc char!!crl \\itl\ti~Jyin&th< ~riicr.,\ni~r~c:nn,!\lcni
;,n.l propaisino.:imcnunicni\ 10 11. in\truiiicni> in ordcr itiiii<iJcriii/c thc Orgi-458 BORDER AND TRANSBORDER ARMEDACTIONS

nization and find the means 10give il a better interna1 political balance and to
increase the opportunities for co-operation among its members. under the
general banner of a Third-World approach and détente in international af-
fairs. evidcnt at that lime both on the world sceneand on the inter-American

scene. CEESI orodiiced a considerable number of volumes. II develooed
draft amendmehts to the Charter and to the Rio Treaty and proposcd iwo
new draft convcntioiis on co-operation for integral development and collec-
tive cconomic security. Thç only draft ultimately enacted was the amcndment
of the Rio Treaty. The Protocol in question was signed in San José,Costa
Rica. in 1975.but has no1yet entered into forcc.

The dormant intention to reform the inter-American systcm resurfaced
again al the General Assembly held in Riasilia. the foundation being rhe
work thrit CEESI had produced. The brief lime frame allowed for this major
undertaking means that the bodies responsible for this vas1projcct have to
prcparc their drafts quickly.

There is, therefore, an cver-present concern to adapt and improve the
instruments 01' the OAS to suit increasinç political, social and economic
needs in the countries of the hemisphere and Io be in step with the changing
international scene.
The idea of streiigthening the Organization at ils very foundation also
sienifies a desire to make it a more effective means of achicvine ils maior

objectives. which raiige from maintenance of peace through coll&live se&
rity and peaceful settlçmcnt of disputes, to observance of hunian rights and
inter-Americaii co-operation in al1fields.
This effort to renew the system comes ai a tirne when the most serious eco-
nomic-financial crisis endaneers social tranauillitv ' and threatens to oa.-lvse
the development of most ~merican countri&.

The situation of the Pact of Boeota has been a source of concern for the
Org:iniz:ilion sincc 1954: ;ilIh.11timc thc Inlérii:ilional ('oiilcrcncc(ifr\nic,ri.
c:in Si:iics hclJ in C;ir:ic:is ;idoptcd rc~i>lutic~nSCIX whcrchy ir.>rJcrr.d thc
thcn Council to conduct an inuuirv.amo.e the meniber Staies to "ascertain
the ~uit.ihiIit~c~i.:tnJ th~ appropri.,tc ,qqxtrtuitit\ for pru:cc.l~~ig 18,rc\~\c
the nicriain 'l'r<.;i~iii1';irilic Scttlcmr.ni"if thc rr..liltr ur.rr. ~i<~siiivr.ilic

Intcr-,\meric;in (oiincil of Jurisr\ aiid the Inrcr-t\iiicrii:iJuridical Commii-
tee were to study the possibility of amending the Pact of Bogoth. The out-
come would no1 have favorcd amendment of the Treaty.
Later. ai the first regular sessionof the General Assembly held in San José.
Costa Rica. in 1970.the General Assemblv ado~ted resolution 54 wherein the

lntcr.,\nicr~c:ln JuriJic,~I Cc1mmit1:e I>rcqu~~tcJ. h~n><J ,IIItlic prcwihions c~f
.\riiclc 26 ,ritlic ('h.~rtcrIO nindurt .i31uJv oi the r.\pcricnid .icquircil ironi
a~olication of the instruments for ~eaceful scttlcment of dis~utes.in order Io
sirengthcn the inter-American sydem for the maintenance' of peace. In ils
opinion of September 8. 1971. the Committec said that the best means to
strengthen the system would be for those States that had no1 yct ratificd the

Pact of BoeotA to do so.
The ad&bility of amending the Pact of Bogota was raised at CEESl in
1973. Although no i~osition materialized in this respect, CEESl dçcided that
the mattcr should be cxamincd on some future occ-asion.
Today the Committee has been entrustcd with studying the Pact of
Bogota: the Committce had suggested that very thing in ils own opinion of

August 21. 1984. The fundamental purpose would be to facilitate a gcneral
consideration of the measurcs that should he taken to modernize the inter-
American system overall, with a view to strengthening il and endeavoring. by ANNEXES TO THE COUNTER-MEMORIAL 459

cvery means possible. to make inter-American CO-operation more effective,
in this specific case in the fieldiofpeaccful settlement of disputes

The Prrcrof Bogoti ütirl the Inrer-Americatr 7lz.aty of ReciprocrrlAs.sisrrr,ice
- Iri.srriimenrsfor the Mairirenirr~ceof Pence

The Pact of Bogoti and the Inter-American Trcaty of Reciprocal Assis-
tance are the instrumental means for carrvins out the obiectivcs sct forth in

the Charter with resoect to maintenance of the oeace. hé fir~t ~s t~~-Oreani-
zation's response 10 the need to settle international disputes bctwcen ils
members peacefully; the second is a collective response to aggression and
other attemots ae;iinst the territorial inte"rit,, sovereientv and indeoendence
of the member Statcs. undcr the terms and accordin; to the charictcristics
that those instruments cstablish for each one of their respective spheres of
action.
The fact that theCharter of the OAS makcs reference to those Iwo special
treaties. which differ in their nature and sphere of application but are the
same in terms of purpose - that being the maintenance ofpeace -. n;iturally
prompts me to examine how they are applied. which is frequent and wide-

ranging in the case of the Rio Treaty, and non-existent in the case of the Pact
of Rogoti. Thc RioTreaty has been ratified by the vas1majority of the mcm-
bcr States, while the Pact of Bogoti has been ratificd by an obvious minority.
While the RioTreaty was amended by the Protocol of San JosC, in 1975,the
Pact of Bogota htis rcm;iinïd unchanged.
Naturallv. the most strikine fact of al1 is that the Pact has nevcr been
ini,okr.J 11" 11sp:iriies ici scttic iticir Jisliutcs pc:ir~iull!.Il llondur:~~ :inJ
Kic;~r:igu.ire\,irtcd io 115pr<iirrlurc> in 1957. II w:i\iinly hcc:iu.c thc I1crm:i-
nent Council. acting provisionallv as oraan of consultation. had rccommended
that measure and tKc'twomembér tat telook thcir disoute to the International
Court uf Juslicc 10 rcsi,l\c ihc cuiitro,crsy oicr ihc I'llihI\,rard.

Thu,. ihcr: h;is hccn no h:al:sncc.hci\vcc.nihc tu<>lunil;inicnt;il \ide\ of the
maintenance of pcace within the OAS. thcise being collective sccurity and
peaceful settlement of disputes. In pr;tcticc. the Organiration's main objec-
tive with respect to pciiccful settlement of disputcs hiis not been servcd. This
may be because rcsolution has been sought through Article 7 of thc Intcr-
American Treaty of Reciprocal Assistance, which provides the following:

"ln the cxsc of a conflict betwcen two or more American Statcs.
without prejudicc Io the right of self-defcnse in conformity with Article
51 of the Charter of the United Nations. the Hieh Contracting Parties.
meeting in consultation. shall cal1uoon the conteidine States tosusnend

inter-Americsn peace and securitv~and for the solrrtion of the conflicr hv
12t,icr~irtli,ir>~Th; rc.lc~.ti.,of ihc p:~:ii)iny..,<iic,iiilhc c,in,i~lr.rcil
111iliriIctcriii~ii:ii~111ihc ng$risr\ir :illin ihc :ily~lii.iil<nIIlhc liicd-
sures which thc consultative meeting may agrcc upon."

Pcrhaps several instances where the Rio Trcaty was invoked can be better
cxnlained if one considcrs that the Oreanization did not have an orean that. at
thérequest of one of the parties or onits own initiative (as happenid with the
Inter-American Pcacc Committee, before il was changed in May 1956).could

recommend to the contending States suitable measur& or mca& for finding a
solution to their dispute.460 BORDER AND TRANSBORIJER ARMED ACTIONS

Thus, under certain circumstances, the American States have had to invoke
the Intcr-American Treaty of Reciprtical Assistance, an instrument whose or-
gan acts at the request of one of the parties and, in certain cases. when con-
vokcd by the Chairman of the Permanent Council (Article 63 of the Charter).
Under Article 7. cited earlier. it is called upon to olav an im~ortant role in
achieving pacification and cven to finding a ;olution'to.the conilict via peace-
ful means. Naturally. the best thing for the member States and for the inter-
American system would be for the methods of peaceful settlcmenl to be as
effective as the Rio Treaty's methods, even more so if possible.
A desire to achicvc that parity. or ai lcast some balance in thc use of the

two means for maintaining peace within the inter-American syslem, is what
doubtlcss has promptcd the member States to try to alter thosc aspects of the
fundamental instruments that. experience has shown. do no1 function or have
not functioned in the past. In the Committee's judgnient, the situation noted
in the case of the Pact ofBogota holds true in the case ofthe OAS Charter. as
well. since the task assigned to the Permanent Council and to the Intcr-
American Conimiitee on Peaceful Settlement, under Articles 82 through 90.
isjust as difficult since il cannot. al the requcst of only one of the parties or on
ils own initiative, Icnd ils good offices to bring the plrtics together and sug-
gest means for setiling disputes betwecn member States. In ils opinion of
August 21. 1954. the Committee suggested amendments to the Charter lo
correct that problem.

The Pacrof Bogora

This instrument is provided in Article 26 of the Charter so that it will

within'a reasoiiable period"
The Pact of Bogota was to be a codification of those treaties on peaceful
settlement existing within the Inter-American systcm and listed in Article
LVlll thereof.That Article provides that once the Treaty comes into effect,
the earlier conventii~ns shall cease to he in force with respect to the parties

ihereto.
The American Treaty on Peaceful Settlcment went beyond jus1 codifying
those conventions. as said before: an eflort was made to en-ordinale it with
ihc pro,,isi<insof thc linlied Slitioii~ C;h;irtcr .inJ \igiiific;int rc\iriclivc st.in-
kir& ncrc iiitr~>diic~~\i.-;i-\,115ipplic.iiion ;iiiJ {ithcrs ,uch :is the jcqucncc
of stem the oariics would be compelicd to follow if the procedure of concilia-
tion ;as intoked from the outset:
Thus, the Pact of Bogota could bc dcscribed as an Inter-American Treaty.
for peaceful settlenient ol disputes that contains restrictive gencral standards
concerning ils app1ic;ition; that descrihçs. one by onc, the proccdures of good
offices, mediation. investigation and conciliation, both judicial and arbitral.
that are availablc to the parties;that docs no1establish the preeminence ofany
one method over another or any obligation to initiate the procedures: instead.
il cithcr of the parties invokes the procedure of "investigation and concilia-

tion" (Article XVI) any party may request the Permanent Council of the Or-
ganization of American States to convokc the Commission of Investigation and
Conciliation. If the Commission's effortsare unable to producç a solution, this
cntitlcs either of the parties, if they have not agreed upon an arbitral procc- ANNEXES TO 'THE COUNI'ER-MEMORIAL 461

dure. to have recourse to the International Court of Justice. In this c;ise. the
Court shall have compulsory jurisdiction. in accordance with Article 36. parn-
graph 1, of ils Statute (Article XXXII). If the Court, which has the right to
decide on ils own jurisdiction (Article XXXIII), should dcclare itself without

jurisdiction to hear the controversy, for the general reasons mentioncd in Ar-
ticlcs V, VI and VI1 of the l'rçaty. the controversy shall be declared cndcd
(Article XXXIV): but if the Court for ;iny olher reason declares itself to be
without jurisdicticin to hear and adjudge the controversy, the contracting par-
ties are obligated to submit il to arbitrntion in accordance with the prcivisions
of the pertinent Chapter of the Pact (Article XXXV). In any event. recourse to
the International Court of Justice is availablc Io the parties inasmuch as they
declare that they recognized the jurisdiction of the Court as compulsory ipso
fncro. without the necessity of any special agreement so long as theTreaty may
be in effect. in al1disputes of a juridical nature that are specified in the tex1of

the Pact itself (Article XXXI).
This is the systcm set up under the Pact of Bogot5 with respect tothe auto-
matic sequcncï of procedures. \Vhen matters rcach the point of compulsory
arbitration. should one of the partics lail to dcsignate ils arbiter andior fail to
present ils list of candidates within a period of two months. theothcr parly shall
have the right to request the Permanent Council of the Organization tcresiah-
lish the Arbitral Tribunal, in accordancc with thç manner established in the
Pact itself (Article XLV). If. moreovcr, the parties füil to draw up an agree-
ment clearly defining the specific matter that is the subject of the controvcrsy
within three months as of the date the Tribunal is installed. that agreement
"shall be drawn up by the International Court of Justice through summary pro-

cedure. and shall be binding upon the parties" (Article XLIII).
The latter seuuencc and the leeal ~osihiiirv rhai arhirration could bc donc
without one of the States parties tothé disputeparticipating is n'bat has come to
be called the automatism of the l'rcaty and arbitration by default. respectively.

Vi~ihiliiy oJ ihe /'ilci

The viability of an instrument depends upon how quickly and effcctively it
serves the ouroose for which if ms siened. So lone as it is difficult ta rcsort to
11spri~ccdurcr. 'u Iting :ihitr;il)plic;iti~)nJepend. oii :ii<~iirilin.it~.JSroup III
politic;il u,ill\ :ind noi cinl\.on thi. prcssinp nccd that ;iSi;iic m:iy hi>\<io scck

ihe peaccful settlement of a dispute undér the protection of a spccific lrcaty
on the subject. the viability of the instrument will be questionablc. And this
happens with the Pact of Bogota. beyond a general impression that il might
be bctter. in the broadness of ils standards. to suggest suitable application
consistent with the.varied nature of the disoutes and of the circumstances that
may surround tlicm.
771r,~o,s,sihiliiyof ils invocniion: Neithcr party is legally in a position to
invokc the Pact ;it the time whr:n, in ils individual judgment, a controversy
can no longer be settled by dipli,ni;ttic means.
ln fact. the second paragraph of Article II establishes that

"Ciinscqui~i~il!. iiiihr.r.vciil thiii;ic<,ntr<ii,i.r>!;iriw\ h~t!rcr.ntivo or
iii<ircsign.iiory Si;itc%\~IIIL.~II lI1i01>1,!t<,oflkt, />,1r11t3c:inn<il bc sr.!-
tled through direct negotiations thr6ugh,the~usual diplomatic channels.
the parties bind themselvcs to use the procedures established in the
prescnt Treaty." etc.

That provision prevents any party, after having made a reasonable attempt462 BORDERANDTRANSBORDER ARMED ACTlONS

tii rz;ich ;in ;igrccincni througli dipl~~iti:iti~ mc:iiir. t<ircsort tiithe proceduri>
of the I'act. unle,, iihs~ihc ccinscnt of the uthcr p:grts i,rp:trtir,\ 'lu prcscnt
recourse 10 the methods of peaceful settlement in th& wa) certainly keduccs
the viability of the Pact.
That rule is, moreover, at odds with Article 25 of the Charter, which estab-

lishes that
"ln the event that a dispute arises between two or more American

States which, in the opinion of one of th en^,cannot be settled through
the usual diplornatic channels. the parties shall agree on some other
peaceful procedure that will enable them to reach a solution."

The proposal by the Inter-American Juridical Committee dated Novem-
ber 18, 1947.contaiiied a version completely in accord with this provision of
the Charter: the Pact should also be in agreement with il.
Another factor that also affects the viahility of the Pact is the wording of
the provisions on a controversy that arises (Article II, second paragraph) or

disputes that arise (Article XXXI) among the member States, thus giving
them a sense of application for future disputes. This is no1 an accident that
should be overlooked. since the General Treatv of Inter-American Arbitra-
lion and the General Convention of lnter-~merican Conciliation (1929).
each in ils Article 1,both indicate that they apply to controversies "that have
arisen or may arise" among States parties.

If the Pact. in soeakine onlv of the disoutes that arise. did no. de~ ~ ~ ~om
the texts of thc conventiGs that it was to'codify so as lo restrict appl~cation of
its provisions, that departure fromthe texts of the other conventions in ques-
tion would no1 make'sense. 11is strange, however, that the Pact on ~rbitra-
lion (Article XXXVIII) States that il applies to controversies of any nature
"that have arisen or may arise in thc future" among the parties.

In a ..neral wav. then. the Pact should refer to the existine disoutes amone
the mcrnhcr ~laic;. .l'hts argument \va\ ;,ccc.ptcd hv C1:l:~l'an~ h!. Ihc l'et-'
rnlincnl Council. lu tlie rtxicnt ihat the? prcy~ibcd ,Irari 3rncnJmcnis to Ihc
Chiiricr thai rcflcct th^.nrincii>leih.ii pcaseful ~elilcitieni 15 ;i;i~niiiiiiment 01
t~ ~ ~ ~es vis-&vis ex~s~~~~-~~~outes
.~ ~~-
This piinciple has heen:dopted by Working Croup "A" of the Committee
on Juridical and Political Affairs of the Permanent Council, which is in charge
of the review of those orincioles and standards of the Charter. as part.of t.e
prcscnt underiaking f<;rwhkh ih;it Counzil i\ rcsponsihle under re\oluiir>n
t\(ilReï 745. adsipicd hv tlic Gcncrlil t\.xmhlv of thc Or\S ai 11..session in
Hr:isili;i The lest rciommcnded h! th:it Gro~p u,oulclhe \tordcd ;ii follows.

"lnternational disputes between member States should be subrnitted
to the oeaceful orocedures set forth in this Charter. Nevertheless. anv
nicillhcr S1:liclia>thc rlglil 10 rc\Orl. IIIthe fir>lplilcc or ,II;in! itmc. Iii

the Sccurity <:61uncilor tg,ihe <icncr;il Asscnihl) of ihc [:niid N;iti<ins.
in acc~~rd.incewith the nror.i\i<tn\ <ilArticles 34. 33. and 52 of the Char.
ter of the United ~atio'ns."

The tex1 transcribed above. as may be seen. places the situation of the
member States of the OAS in relation to the United Nations in ils truc per-
spective and differs, therefore, from the first parzigraph of Article II of the
Pac~~ which rcads as follows: "The Hieh Contractine Parties r~~oenize the obli-
g,irr#i!rt,rrrli, irirrr~iiitr~,,r,ii'li~,irro,cr~~~rcgiain.<lpicilic pr<,ccdiirc\ hci~irc

rclcrrinl: tlicm tu the Sccurilv C,ouncil of tlic IlniicJ N:itiiin,"
It is ëvident that if controversies mus1necessarily be serrled within the pro- ANNEXES TOTllE COUNTER-MEMORIAL 463

ccedings of the regional agency, nothingwould remain of them chat shr~uldbe
referred to the United Nations.
Because of I;ick of agreement with the provisions of paragraph 4 of Ariicle
52 of the United Nations Charter, a similar difficulty is found in the prescnt
text of Article 2 of the Inter-American Treats of Rcciurocal Assistance. It
has already been amended in the Protocol of Amendment to the Rio Treaty,

San José, 1975, precisely in order to reconcile ilwith the provisions of ihat
Charter, with thc following text:

"Article2: As a consequence of the principle set forth in the preceding
article, the High Contracting Parties undertakï Io settle their disputes
with one another by peaceful means.
The High Contracting Parries shall make every effort to achicve the
peaceful seitlcment of their disputes through the procedures and
mechanisms provided for in the inter-American system before submit-

ting thcm to the Security Cotincil of the United Nations.
This provision shall no1be interpreted as an impairment of thc rights
and obligations of the St;ites Parties under Articles 34 and 35 of the
Charter of the United Nations."

For revision of Article LI of the Pact, the above texi could well be followed:
even better. the zirticle could makc express reference to Article 52. paragraph
4, of the Charter of the United Nations, which is the one that recognizes ihe

complete right of the States belonging to regional arrangements to rcsort, at
any time, to thc Sïcurity Council, in accordance with the provisions of i\rticles
34 and 35. despite the recommendation 10 the States Io make every elfort to
achieve peaceful settlemeni of disputes through the regional arrangements.
when they belong to them.

We could no1 fail to point out herc, in relation to the viability of the Pact,
thc fact that this instrument has the so-called automatic operation of ils pro-
cedures and arbitraiion by default. From one point of view, this means that a

sequence of procedures are available, procedures that become pr;iclically
obli-.tors for the Hiah Contractina Parties when conciliation fails and the
w:iy is ihur sipcncd ior :in! <if ihc p:irtics tu h:~i,eihe right iu rc>orr io ihe In-
iern;~iii>naI Court of Ju\iice. Lndcr cr.rt.iiii .widiii<ins. ihc (:ouri ma!. have Io
dccl:ire iiselfIO hr: ii,ith<iui lurisdicii'l'hi, mas Ic.idtii;irhiir.iiiiiiii \rliisli

the membership of the ~Gibunal and even thë d~ifting of the agreement
would bc autom;itic.
The problem this automatic operslion creates is that the parties may feel
obliged to subjcci a dispute Io meihods or procedures that, perhaps. niay not
be the most appropriate ones. A rclatively minor dispute. suitable for scttle-
ment through conciliation donc by much simpler means ihan those provided

for in the Pact, could end up before the Court. All this might involve reme-
dies and standards that might nilt bc the most suitable for that particular dis-
pute. And if the Court should declare itself to bc without jurisdiction, on
grounds other than those given in Articles V, VI and VI1 of the Pact, the dis-
oute would finellv fall into arbitraiion.

,\Ilihis 13thc~~reiic:ill!. l~ns~ihlc.ln pr:i~,llcc, if ~u,i,,lx oui (~fpI:~c 10
sulip<~\cth:ii ihi\i~~ir.ii15 <in<of ihc rc;iwnr wliy ihe P;içi ha\ iioi hccn r;iti-
ficd hi, othcr meiiiber Stsics ui thc OAS. ,\iiJ ihr. iiiost scriiius ihint! :ihq~ut
this matter is that even conciliation ihat does no1 resort to the provisrons for464 BORDER AND TRANSBORDER ARMED ACTIONS

this proccdure in the Pact, if il fails, will open the obligatory sequence of that
instrument.
The Rapporteur feels that one possible wny to make the Pact more viable
would be a revision iiitended to offer the States Parties the option of accept-

ing that obligatory method, making allowance for arbitration by deiault; or
one that, when conciliation ends without rcaching a settlcnicnt of the dispute,
would not make the States Parties see themselves impellcd, by that fact, to-
ward that autoniatic operation.
The reservations that have been made to the Americari Treaty on Pacifie

Settlement have the cffect of removine some of the States Parties from that
\qucncc. :il \,?ri&\ in,iniriit> an\l ai(ccting ititi.uch ;. w.1~ ih;tl ,t \\,>ulithc
,ti,pcndcd tipiiii rc.icliing ihc Cuurt :iiiJpri\.ciiting IIiroin iIcciJiri~ a hctlicr
11 Il:,, ~~ir~sJiction..lItrihui~n~th~l noncr ta! ihc St.xtcinakinc ~hcrcsc,r\,,i~ic~ii.
or upon refusal to accept arbitratiôn in which one of the parïies does not par:

ticipate.
If, for the same reason. this singular characteristic of the Pact could be
maintained as an option for the States, in a mannerthat would not keep them
away from conciliation in vicw of the condition legally established in the

treaty that, il tliat remedy fails, would Icad them to the two judicial proce-
dures. perhaps that would hclp to make the Pact viable without affecting thc
positions of the States that have ratified it without reservation, even though
they have never resorted to ils procedures.
This last circumstance leads us to the most disturbine uuestion: Whv have

the States Parties no1 made use of the Pact? What is h~pl;ening with skch an
important treat)'. one that up to now is no more than a juridical curiosity of the
svitem and no1 the vital instrument activclv workine-for the oeacefui scttlc-
ment of disputes between the member Statés,as migit have bien hoped? Be-

cause the Treaty has simply never been applied. we could well saythat the safe-
guards and restriction vis-à-vis ils application. as they appear in some provi-
sions of Ch~nt~r~1.tur. out to bc elements that. ~ ~~ ~hev should hav, ~imited ~ ~ ~ ~ ~~~
the cases of application, in the end have no1been able to contribute anything,
because the treaty as ;iwholc haï not been applied. The truth is that the narties

act as if the Pactwere an instrument foreign or unsuitable to them.
The lack of viability of the Pact because of its lack of application is well
known in the inter-American system. It is true that the treaty lacks an organ
to which the parties could resort to help them in deciding on the one proce-
dure best suited to the disputc prcsented. It is also truc that this gap continues

to be felt in the Charter of the OAS, upon not giving the Permanent Council
or the Inter-Americaii Committee on Pesceful Settlement the legal mcans to
brine the oar~~~s toeether and orovide ils eood offices. which could mean a
recokmendntion asYtowhich Piocedure piOvided for in'thc Pact (for th; par-

ties) should be used if thosc good offices should prove to be insufficient. In
theend. the orobleni with the eenerai viabilitv-of the svstcm of neaceful
settlement is ho shown by the fict that the intir-Americin system jocs not
have an organ that could act as the Inter-Amcrican Peacc Committcc so suc-
cessfullv di'don so manv occasions when the member States of the OAS wcre

involve~ ~ ~ ~ ~soutes.
The Rapporteur must go on record to say that in ils Opinion of August 21.
1984.the Committee has already recommended amendinr Article 84 and those
followine il. of the Charter. ~hë ~roblems are. in fact. inierrelated and cannot
be look2 ai in isolation, the one; apart from the others. That interrelationship

is so clear that the Rio Treaty, and not the Charter or the Pact oi Boaoti. haç
been the instrument to which the member States of the OAS havë had 10 ANNEXES TO THE COUNTER-MEMORIAL 465

resort. as the only possible recourse for peacem;iking. in the full sense of the
word. as has been said before. Onlv that instrument may be invoked unilate-
rallv. somethine not allowed in thés~ecific case wherc ihe Permanent Coun-

cil ntigtti a,fic;t,rs>,i.l<iiiii~,IIItltc ;i$il111311n_r Ic8rc\ccn IIIthc Ch,trtL.r. iur
iililch thc ci,n3r.i,ii thc p.trtic\ iiii.,~Iic,Iin thr. Jiq>il1,nilii rcqilirc~l Siiiic
the Rio 'rreatv must actwhen acts of aeeressionor others forcscen in that
instrument occur. its pacification mechGism is triggered when collective
security has been affected. although Article 7 provides for the search for peace-
ful solutions, as has happened

Aspects reslricring Ille ~rpplicationof rhe Pacr

The American Trcaty on Pacific Setllement. unlike other instruments that
deal with the same subjcct, such as the Europcan Convention for the Pacific
Settlemcnt of Disputes. Strasbourg. 1957,or the Revised Gencral Act for the
Pacific Scttlcmenl of Disvutes. ol the United N;itions. A~ril 28, 1949.or the
proposais preparcd by ihe Inter-American Juridical ~&nmittee, contains
some provisions in Chapter 1that restrict ils application and concern diverse
subjccts. ~~
Thus Article IV constitutes a measure suspending action, sincc it provides

that, oncc any pacific procedure has been initiatcd, in accordance with the
Treaty. or a previous pact, or hy agieement betwcen the parties. "no othcr
proccdurc may bc commenced until that proccdure is concluded".
The provision thereby averts ;ipossible build-up of pacific proccdures which
is entirely reasonable.
Article V states that the pacific proccdures may not be applied to mattcrs
that. by thcir nature. arc within thc domcstic jurisdiction of the State. It adds
that

"If the parties are not in agreement as to whether the controversy
concerns a mattcr of doniestic jurisdiction, this prcliminary question
shall he submitted to decision by the lnternational Court of Justice. at
the rcquest of any of the parties."

This article mirrors Article 2, parzigraph 7, of the United Natior~sCharter.
That paragraph has been criticized for no1stipulating which matters are the do-
mestic jurisdiction of the State. Those matters wcre specified in Article 15.
paragraph 8, of the Pact of the Leaguc of Nations. which said that international

law would dctcrmine whethcr a m;ittcr was one of domestic jurisdirtion.
The text of Article V makes no rcfcrence to international law cither. How-
ever. should there be any disagreement on the matter, any of the parties can
go to thç lnternational Court of Justice to have this preliminary question re-
solved. To decide the question. the Court will obviously apply international
law in the manner established in its Statute. The problem. of course, is that
there have been reservations to this article conccrning the jurisdiction that
the Court would otherwisc have to decidc problems of this type.

Article VI states the following:
"The aforesaid procedures. furthermore. may no1 bc applied to mat-
ters already scttlcd by arrangement betwcen the partics, or by arbitral
award or by decision of an international court, or which are governed by
agreements or trcaties in force on the date of the conclusion of the

present Treaty."
This article embodies the principle of observance of treaties ([)licrnsitnt ser- ANNEXES TO THE COUNTER-MEMORIAL 467

directly by the claimant State to the State being claimed, and recourse to a

"court of international jurisdiction", which in this particular case would be
understood to be recourse to the International Court of Justice. The second
of thcse ;iciion>ivould rcquirc that botli pariics haw sisncd ihe kict wiihi~ui
:in\.rc\cr\,;itionIL,,\rticle XXXI :inJ thsl the ijiuc in question hc luridical in
naiure. Recourse to an arbitral tribunal (althoueh iurisdictional)would not
be easy. since the consent of the party wit'hwhom th'ereprescntaiion is being
made would he required.
Ultimately such matters are procedural in nature. The interesting point is
that if nationals have had "available the means to place their case before

competent domestic courts" this one circumstance would suffice to allege
that justice has been denied.

The proce<lrrres linder lhe Pocr

M'cuill nui ;iitcmpt ail! siuJv of th<,nicihud* <ii ilic P,ii'l'hrGciicr:il Sc-

crctariat hi15prcscnic-cl;iilucuriient (Ot.~\iScr.Ci/Cl'/di~ç.ISOii~r ;';iri III)) ol
April Y. IYXj.Ior the purporcs ,ci fortli in Gcncrltl ,\sscmhly rcsoluiiiin AC;/
Rc\.7J5 (SIV-il~h'l) 'l'hatJuiuiiiciii u;ij b;iscJ on IWO urhcr Ji~cuiiicrit~th:ai
tlic luridical Cummiticc had ucc:i\ion icirc\.iea ;aiils J;inu.ir! IV35scisiiin.
Th;ii <lo~umeni <I~.i.iithlhc ~lri,ccilurc\.sltliiiu~h !hi: I<.i~i~iort.'uir\ uiiilile Io
eoncur with some of the areumcnts that the GGeral ~ec;&ariat makes in this
regard and that were explaked at some of the Committee's meetings.
We will. therefore. take an civerall look al the situation of the procedures
established in the Pact:

The Oh/ignrr~r.v Elemenr: The Pact has no obligatory procedures. In other
words, in the event of a controvcrsy, the States Parties have not undertaken
any obligation to resort to any of the procedures in particular, exccpt in the
case of the difficiilt compulsory arbitration triggered by the aulomatic proce-

dure in the Pact (Article XXXV). as will be seen further on.
The Pact has had to make allowance for a situation whereby if a State
Party wishes to invoke a given procedure (without its being that State's
obligation to do so). it may do so. If the controversy in question is of a juri-
dieal nature. it does this by recourse to the International Court of Justice,
in which case jurisdiction is compulsory ipso facto for the parties (Article
XXXI). If the controvcrsy is of aiiy other nature, the State may invoke the
Pact by means of recourse to conciliation, in which case it has the right to
request that the Permanent Council convoke the Commission of Investiga-
tion and Conciliation to obtain from this body certain recommendations to

the effect that the parties avoid acts that may impair the conciliation. But the
Council cannot form that Commission if one of the parties fails to appoint
two of the members (Articles XVII and XIX).
In any evcnt, there is no clause in the American Treaty on Pacific Settle-
ment that binds the States Parties, in the event of a controversy. to submit
said controversy to a given procedure. An obligation of that kind does exist,
for example, in the European Convention for the Pacific Settlement of Dis-
putes, Strasbourg, April 29. 1957. Under Article 1 of this Convention. the
High Contracting Parties are ohliged to submit to the International Court of

Justice any controversy of a juridical nature that is related to the situations
listed in the Statute of the Court, Article 36.2.By the same token, under Ar-
ticle4, the parties shall submit to conciliation any controversy that may arise
between them and that is not covered under Article 1.468 HORDER AND TKANSBORDER AKMED ACTIONS

Let u\ cl;irify\hi>lwint: Hy ni~tin:xking il binding upim the Partie\ Icircit>ri
i,o sny givc~iprii:crlur: ihc P;ict pri~viilcs ;in optii~nu,hcrcby il on< df thciii
wi,hi. tiiiiir'sc>nïili:iti\>nt.Ii;it p;urti,iiiav ii~iilatsr:ill~rcoucst <>tihe I'r'riiiancnt
Council, the organ that is empoweréd toconvoke the Commission of Investiga-

tion and Conciliation (Article XVI). that it do so. However, with this procç-
dure, the inst;illation of that Commission is still contingent upon whether the
States Parties have first appointcd the two memhcrs of the Commission. by a
simple exchange of notes (Article XVII) or, if not. alter compiling the names,
by appointing them at the star1 of the conciliation procedure. in accordance
with Article XIX. The Pact does not address the possibility that a State might
refuse to appoint its members on the Commission. Nonetheless, it is clear that

the Permanent Council does not have the powïr to make that appointment by
default, as happens when thc Arbitral Tribunal is constituted (Article XLV).
The other option the Pact provides is that if a party decides to go 10 the
lnternational Court of Justice (without this being ils obligation) 10settle any
controversy of a legal nature. it will then have the compulsory jurisdiction.
ipso fucio. of that Court in rçsDect of the other oartv (Article XXXI).
'
~aturall~ cvïrything said here is ;ifunction of ihct&t of the ~iict,;eserva-
tions notwithstanding.
This direct recourse 10 the International Court of Justicç, which comes
about when a oartv.volu.tarilv hrines the matter to that~c~urt of inter~a~ional
luri,diciiiin. 15cniircly dificrcni fri~nith<,rcsc>urrctli;ii :, p.iriy h:ir hy I.a\i;is ;i
rcsult of the aut\~m:iticclinicitt t>fthe P:ICI In the 1otti.r ia:.r..juriiJicti<>n i>

iiiiih:lrril on t\riicle YSXI. hui r;itlicr r\rticlc XSSII. which nrovidcs thcilil

in accordance with Article 36, paragraph 1,of its Statute.
If a controversy that might be described as not being juridical in nature, is
initially submittcd to the conciliation procedure, and ifthat procedure fails

and the parties fail to agree to submit it to a procedure of arbitration. cither
of the oarties (ae.in. if il so desires) mav .akc t.e controversv to the Court.
Oncc 11..lurisJiiiii~ri 15:~i:ihlishcJ in ;~cciirJ;~n;c\i'iih Arliclc 30 I .,l ils Si;i-
tut', tltc ('\i~rt ih~n li:t\$ciicr,tl iu~i\dicti~~nn ,<>tc\~iitinc.I 1,s:~~~itrt~\cr\ic<
jur~Ji nur 1'irr:ipli lui th r c : I I t i flic juri,,liiliuii id
ihc <:ouri c<mipri>c.\ :,Ilc;t,cs ahish ihc p:lriic, rsfcr 1,) il:iiid:il1ni;iitcrs rpc-
ci:iII) pr,,vidr'd f<irin the Cli:irier i)ithc- IlniieJ Scitions or in irr.~ilic~and con-

ventions irili~rcr'."111thc l':ici ai(U<ir<it.ip . r<i\isii>iih:i\ hccn ni:idc.fur the fnci
that the Court has: (a) compulsory $risd;ction for the controvcrsies of a juri-
dical nature as listed in Article XXXI, which it recognizes: and (h) compul-
sory jurisdictioii for any controversy that cornes to it as a rcsult of unsuccess-
ful concilialiun (conciliation of any type of controversy) and for which the
parties have no1agreed upon an arbitral procedure. based on Article XXXII.

Only the Court's geiieral jurisdiction recognizcd in Article XXXll triggcrs
the automatic clement of the Pact: otherwise. its jurisdiction would have
been confined to controversiçs of a juridical nature. which would be at odds
with the purpose of that automatic procedure and with the Pact's clear-cul
recognition of the Court's dual jurisdiction in the case of controversies of a
juridical nature and ;IIIcontroversies in general.

Article 36.1 of the Statute is very clear on the point that the Court has
jurisdiction in respect of o~rytirilrrerthat the parties may bring 10 it or that is
included under treaties. The General Secrefariat (p. 19 of document OEAl
Ser.G/CP/doc.1360/85 (Part III) of April 1985) is of the view that the Court
would only hiive jurisdiction in the case of juridical controversy; on this point ANNEXES TO TIIE COUNTER-MEMORIAL. 409

it incorrectly citcs paragraph 2 of Article 36 of the Court's Statute, when ihe
Pact of Bogoti. in Article XXXII, makcs specific rcference to Article 36.1 of
the Statute. which means the Court has general jurisdiction for any contro-
versy and not just in respect of controversies of a juridical nature. according
Io paragraph 2 of Article 36 of thc Siatuie. This is why the Rapporteur has
dwelled so much on this point, in order to make his position very clear.

That the Court, according Io the Pact, has jurisdiction Io hear controver-
sics of a juridicol and political naturc is zilsoin cvidcncc in the reply rcccivcd
from the Government of the United States to a survey ihat the Council of the
Organization coiiducied between June 16. 1954. and February 4, 1957.con-
cerning the advis;ihility of arncriding the Pact of Bogoti. Briefly. the United
States position. which favored amendment of the Pact of Bogota. stzites that
the major defccis of the Pact arc: (11the requirernent ihat political as wcll ris
juridical differenccs be resolvcd by means of judicial proccdures, such as the
provision on conipulsory arbitrstion: and (b) abandonment of the principles
of internatioiial I;iwconcerning diploiiiatic protection. The completc tïxt of
the note in qucstion appears in "Acts and Documents of the Second Spccial

Inter-American Confcrcnce. Kin de Janeiro. Brazil, 1965". Volume IV. pages
18-22,document 5.
From the foregoing. we can say that the Pact of Bogota provides a sysicni
of procedures whcreby once a controversy is submitied to concili;~tion.
following thc scquence established in Article XXXII. if the parties do no1
ihen agree to arbitraiion, either of thcm may bring the controversy to the
International Court of Justice fa~rsïtilcment.
If the parties do no1 agree as to whether the Court has jurisdiciion, the
Court itself shall first decide ihat question (Article XXXIII). Any reserva-
lion to this article will prevent the Court from participating and discontinue
the automatic working of the Pact sincc the Court would be deprived of Iwo

important options: (1) to declarc itself without jurisdiction Io hear the con-
troversy for the reasons set out in Articles V. VI or VI1 of thc Treaty, in
which event the controversy sh;ill lhcdeclared ended (Article XXXI\'); and
(2) to declare itsïlf to bc without jurisdiction on any other grounds, in which
event the parties shall be oblig;ited to submit the controversy to arbitraiion
(Article XXXV).
One point that should be noied is ihat. since Articles V. VI and VI1 con-
stitute general exceptions to the application of the l'reaty's procedures. it is
vcrv unusual that the oarties in a controversv would no1 have noticed anv of
tlii>,cinipiiri;iiii impcJiiiici~t~I>\tlic iinir. th<\ \uhrnii ihc ciintr,lii~:<in-
.ili:iiioii .incl~iii.!.ihcn \\hi11th:? :Ippchchirc th,: Court. \~.<IJIJtlic Ciluri

iiscli u,c ilic inincdim~.nt\1.)Jc<l.tr- ~t~cliICIhc \II!~<IUIIU~I~~ICII<>IInic:in-
ing that such a cbntroversy would no1have been the subject of somc pcaceful
settlernent. It is odd that none of the States would have recognized this situa-
tion. but we realize that this is possible.
Furthermore. determining when the Court may dcclare itself to be without
jurisdiction for rcasons other than those of Articles V. VI or VI1 (the Pact
says ... VI and VI1as if it wçrc dealing with an accuniulalion of reasons) con-
tinues to pose problems. We rulç out ihat the Court c;in declare itsclf to be
without the jurisdiction becausc the controversy ihat il has taken up as a
result of failed conciliation could have been juridical in nature. On this point.
thc Pact does no1confine the C(1ur1'sbinding jurisdiciion to juridical contro-

versies. To the conirarv. in the first hcarine wf a controversv of anv nature
following a conciliation that was unable to resolve il. the controversy is suh-
mitted to the Court independently of that condition, especially because in the470 RORDER AND TRANSBORDER ARMED AC~IONS

Court's own Statute, Article 36.1 recognizes that this jurisdiction covers al1
cases that parties submit to it and al1matters specifically provided for in the
United Nations Charter or in treaties and conventions in force. Obviously, a
treaty may then recognize that general jurisdiction and such is the case with
the provisions of Article XXXll of the Pact.
We should note that for Article XXXV to apply, the Court mus1 declare
itself ro he wirhourjirrisdicrion for some other reason and not simply refrain
[rom hearing the dispute. the premise being that once the Court's non-juris-
diction has been declared, the High Contracting Parties are ohlignred to
submit the controversy to arbitration.
It appears tbat in the situation posed by Article XXXIV, the only alter-
native left- and this is increasingly more difficult to came about - would be
for the Court to be able to declare itself to be without jurisdiction on the
grounds that there is no applicable law. that is, a case of non liguer.
The one certain point is that only through this complex and extremely dif-
ficult process can con~piilsoryarbitration be reached (Article XXXV). The
Pact is silent here. unlike ils dealines with other orocedures. for examole. the
procedure under Article XXXII, in"which any pLrry wuuld be rnlirled in have

recourse to arbitration. By arriving at this point provided for in the Pact, the
parties "lireobligarerl" 10 the arbi'tration. i'here-are reservations made with
respect to this aspect of the Pact, thereby making more unlikely its possible
practical use in this sense. We know, also, that the Pact has virtually never
been invoked by ils parties in cases of controversies.
It is interesting to note that the Pact itself has strong doubts that the par-
ties, even though they might no1 have formulated a reservation to this aspect
of the instrument. will avail themselves of that obligatory arbitration. The
doubt that the Pact asserts is reflected in ils provisions on obligatory estah-
lishment, even in default by one of the parties, of the Arbitral Tribunal (Ar-
ticle XLVIII) which, under this premise, is to be established by the Perma-
nent Council. It is also reflected in the formulation of a binding speciol agree-
menr. Even following default, when one of the parties does not agree to the
special agreement that delines the specific matter that is the subject of the
controversy. the seat of the Tribunal, the rules of procedure to he observed.
etc., the agreement shall be drawn up hy the International Court of Justice
and shall be binding upon the parties (Article XLIII).
We now reach the most difficult part of the Pact, Arbitration in Default. Let
us see what happens: If the parties voluntanly agree to submit to arbitration
differences of any kind, whether juridical or not (Article XXXVIII), or if the

parties go to arbitration through the obligatory roule (Article XXXV). the
result would still be the same in the sense that if one of the parties does not
follow through on designating members of the Tribunal, the Tribunal can be
established by the Permanent Council because the Pact does not make any
distinction between the Iwo ways in which the parties can suhmit to arbitration.
The same is true with respect to the special agreement since, oncearbitration is
accepted and if the special agreement is no1concluded, the parties cannot pre-
vent the agreement from being formulated obligatorily by the Court.
To the foregoing should be added the unusual circumstances that arise in
the event of binding arbitration (Article XXXV), for which the Court itself,
after having declared itself to he without jurisdiction in the controversy.(Ar-
ticle XXXIV), has to formulate the special agreement that is binding on the
parties (Article XLIII). Thus. the Court that has declared itself to be without
jurisdiction is obligated to assume jurisdiction at least for this matter, the
most delicate part of an arbitration, of drawing up the special agreement. The ANNEXES TO THE COUNTER-MEMORIAI. 471

fitness of such a procedure is a point that deserves the Committee's consi-

deration.
And, will therc be eminent persons who wish tu be part of a Tribunal that
is acting by default? Who knows?
Also. will a ~ou~t that has dçclared itself tu be without iurisdiction ~v~r a
contr<ivers) bc inhihiled when 1115 requircd IO furniul:iie aspeci;~laprccment
coiicçrninc the ver\ ci>nir<>i.er,vior whi~.h 11 dcclarcd iisclf lailx without
jurisdictio~? Are thcse viable p;ocedurcs for the Pact?
And if the court has declarcd itself without jurisdiction due tu a lack of

applicable law, could the Arbitral Tribunal formed to hear the same contro-
versv be exoectcd tu findthat at>olicablelaw or does this mean that the Tribu-
nal kight rile on the basis of e4;ity or. if nul. be unable tu settle the case be-
cause there is no applicable law? Also. the idea that the Tribunal miaht rule
on the basis of equ;ty under such a dilficult circumstance is no1so unoÏthodox
in the light of the Pact itself since neithcr Article XXXVlll of the Pact, which
begins Chapter Five on the Procedure of Arbitration, nor any other article
dcfines whether the Tribunal will issue the ruling in "application of the prin-

ciples of law", as, for example, Article I of the "General Treaty on Inter-
American Arbitration" establishes, or how this will be done?
Does the fact that the Pact is silçnt on this matter mean that the ruling can
be oriented by the judgment of the Tribunal? Or is there something missing
in the Pact? This is another ambiguily of this instriimcnt.
These aspects, in lact, give some idea of the great difficulties the States
Parties would face if they had to turn 10the Pact for conciliation and thus fall
under its automatic procedures. Thercfore, the Cornmittee has to consider

this type of problem and to givi: its opinion about il. The viability of the Pact
rests heavily on al1these problems.
The Good Offices orocedure (Articles IX and X) turns out to be a oroce-
dure that the parties ihould acGpt. The Pact is not explicit on this matter.
This procedure normally comes about when there are "offers" of good offices
to the parties in a controversy and the parties accept them. The nature of the
procedure appean IO indicate this.
Mediarionis a method by which the parties choose the mediators by mutual

agreement (Article XI).
Neither of these two methods can lead by action or right of one of the parties
to another procedure, as occurs when conciliation fails. as seen before.
These, then, are closed procedures. no1linked in sequence tu another pro-
cedure.
Direct recoursc to the international Court of Justice if one of the parties
rcsolves to submii tu ils jurisdiction a controversy of a juridical nature, even if
such jurisdiction provcs tu be biiiding on the other party (Article XXXI), dues

not necessarily lead tu continuation in another if ilfails.Wç should say the
same about Arbitration, when agreed to by the partics (Article XXXVIII).
The foregoing notwithstanding, if the parties agree on mediation and
encounter difficulties in choosing the mediators or fail to choose them within
five months alter the procedure has been started. the parties shall have
recourse without delay to any one of the other procedures on peaceful settle-
ment established in the Pact (Article X111).This is a duty but not an obliga-
tion. In any event, the sense iof gencral commitment of Article II of the

Treaty would infer that thc parties ought to have recourse to another proce-
dure when any procedure tu which they may already have had recourse fails.
This dues not mean that they may no1go tu the General Assembly or tu the
Security Council of the United Nations, as Article 52, paragraph 4, of the San472 IJORDER AND TRANSBORDER ARME11 ACTIONS

Francisco Chiirter provides, or ;is has been definitively clarified in the Proto-
col of Amendnienis Io the Intcr-American Treaty of Keciprocal Assistance.

San José. 1975. Article II of which now leaves no doubt that ihe member
States of the inter-Ainerican regional arrangement do have this right.

Reservnrio,~~ ro rhe Pacr

The reservations to the Pact alfect Article V (Peru), VI (Bolivia and Ecua-
dor), VI1 (Arecntina and the Uniicd States) and XXXI io XXXVll (Aracn-
tina). Fr& trc contcnts of the rcscrvation formulaicd by the ~nited ~t;cs,

one concludes that it would aflcct Articles XXXI. XXXII. XXXlll and
XXXV. Pcru's reservations affect Articles XXXIII, XXXlV and XXXV.
One should understand that Paraguay makes a partial reservation to Articles
XXXV. XLlll ;ind XLV to thc cxtent that the binding arbitration might apply
to non-juridical controversies. Also, the reservation of Pcru affects Article
XLV and the rïservaiion of Chilc, Article LV.
The reserv;ili«n ol'Nicaragua to the effcct that no provision of the Trcaty

"may prcjudice any position assumed by the Govcrnment of Nicaragua
with respect to arbitral dccisions the validiiy of which it has contcsted
on the basis of the principlcs of international law. which clearly permit
arbitral decisions to be aiiacked when they are adjudged to be nuIl or
invalidated".

would not have any cffectnow on the Pact sincî the situation to which it re-
fcrred was thc subject of a spccific setilement sevçral ycars ago.
In all. reservations were made to thirtcen articles. Some of these. as noted
above, are objected to by two or ihree States.

Of the Staics ihat formulatcd reservations whcn they signed the Pact.
Argentina. Bolivia. Ecuador and ihc United States have not ratified il.
One poini ih;it Jciervcs spcci:il inciiiioii ir 1Ii;iin<i\i of ihr. rcscri;iii<iii\
concern nain.dcc~.lii.iiiccoi ihc Court's c<lni[ictciicc i<iIlcciJ~ on II,uwii juria-
~liciioii2nd noii-.ixipi;in<c ~iihiiiJin~~.irhiircsiiun niid ;irhitr.iti<rnin Jcf;iuli.
These all. in iurn. deiraci fromthe auiomatic workine of the Pact sincc rcqcr- ~ ~ ~ -
i;iiiun\ siiih :a,thc,,c ini~rriipi ihc ic.luc,n,'c <,ic.\r.ni,;lii.iliçrcliy ,~\pcnil 11
uiicc the ci~ncili;iti<iii111\tir .iii111 ihc p;iriic. iiivokc~ II\r~,-.rv;iiiun 10 prc-

vent the Court from entering the case.
The provisions ihat establish general exceptions in Chapter 1. which cor-
respond to Articles V. VI and VII, have also been the subject of reservations.
One of them. the provision containcd in Article VII. is the subject of con-
tradictory rcasons invoked by thc two States ihat formulated reservaiions
concerning il.
Ecuador's rcservation to Article VI is no1accompanicd by an explanation of
the reasons for it. Also. its rcscrvations to everv oosition that is in conilici with
.
or net in h:iriiion) with ih~prucl:tinicd priniiplc\ or ihc siipul;itiuns ziiiii.iincd
in ihc Uiiitrd S:iii<>nsCh;irir.r. iir ihc Oi\S Ch:irtcr. cnn hc crinridcrcrl io con-
sliiutc rc\cr\;itii~nr iu Ariiclc Il. p;ir;icr;mh., I .i?. of thc P:ici.ï'hr.t,irould hc
reservations 10 paragraph 1bcc&se iiat odds with ihe provisions'of the San
Francisco Charter which we have scen in a general way carlicr on, and io the
second of thcse. because it is inconsislent with Article 25 of the OAS Charter.
In effect. whilc oaraaraoh 2 of Article II reuuircs concurrine oninions of the
p;irtic-3iiihs *cn>r.ih.it hciorc ;lit)(ii ihc l'.ici'spr<i~cJurc\c;iiilie iniokr.cl.;ill
\liiiulJ :i$rcc ih;ii thcir Jirc~i ncgoti.iii<in~diil no1prurluîc rc>ulli. r\riicls 25<)f

the Chaiter provides that only one of the particshas to be 01such opinion so ANNEXES TO THE COUNTER-MEMORIAL 473

thrit rccourse to the Pact can be had, which is as it should be. The rcscrvalion
concernine lack of harmony between the provisions of the Pact and the consti-
tution woÜldhave Io be eGmined in a comoarative studv
Bolivia's reservation Io Article VI is seif-explanalor;.
Since the reservations. pursuant Io Article LV. musr appl) to al1the States
oarties because of reciorocitv. those that have beeii formuiated sueeest the
élimination of importaAt pr&isions in respect of al1the parties.
El Salvador. which was a party to thç Pact. denounced it on November 26.

1973.

Lnck of rnrificnrior~by orher Slii~es

No other State has ratified the Pact since Chile did in 1974. This means
that only slightly more than one-third of the OAS member States are parties
IO the American Treaty on Pacific Settlenient.
There was no1 sufficient timc Io conduct certain inauiries Io in suine wav

shed light on the basic rcasons why the great majority &OAS mcmber States
did no1 ratify the Pact.
In vicw ofthe circumst;inces, the Rapporteur wishçd to point out aspects of
~ ~ ~ ~ ~~~ ~ature that make aoolication or the Pact difficult. as wcll risasoects
that involve or could involve '~oliticaldifficulties for its aiceptancc by Uther
States and are related to the automatic workina of the Treaty and the bindina
iurisdiction orovided for the International court of Justice. uarticularlv wherë
ihe Pact gi;es the Court the jurisdiction Io hear any type c? controveky that

could bc brought before il when conciliation has failed to solve il. Another
aspect. more political than juridical in nature, is retaining thc rcference to
diplomatic protection in the Pact. cvcn if il is as the Pact now has il.
Perhaps the Pact has stumbled over its own complexity into juridical tech-
nicalitics that arc difficult to solve and into serious problems with actual
application.

At the end of this prcsentation, the Rapporteur cannot help but conclude
that the Pact has a numhcr ol technical problems and contains difficult juri-
dical oolicv that could hc zimended with a vicw toward ils effective a~olication
and ior lie purposç of h;iving. to the extcnt possible, the majoril\. of the
membcr States of thc OAS become parties to il. as they are to the Rio Treaty.
Ch:in%in#thesc .i<~pect(prcsupp,iscj i~m~.nJingthc in>irunient. AI llnle~ il
h;is htcii propuscd ihai the Org;ini/;iti~in dc\cli~p for iisclf :I\imilar trcaty
(1lr:rzil.ihc I'niieJ Si:iii.;lnJ tcii:iilt,r m;dt pr<ipos;ilcni ihis ii:iturc in IYh3)

that is more simple, and leaves out the gencral exceptions Io ils application
and the sequence of procedurcs that the Pact now contains since Io this lime
the Pact has not bcen invoked directly by ils parties even though there have
becn controversies betwccn them.
Also clearly missing is an organ that could bring the parties together. offer
them their good offices and assis1 them in choosing some method from the
Pact of Bogoti itself. In ils opinion of August 21. 1984. the Inter-Anierican
Juridical Committee suggested that powers such as these be given to the Per-
manent Council. This could be done by amending Articles 84 er seq. of the

OAS Charter, which concern the so-called good offices. The Council is not
able to do this now unlcss it has the consent of ;il1the parties. This organ also
lacks thc ability to act on ils own initiative or ai thc requcst of only one party.474 HORI>EK AND TRANSBORDER ARMED ACTIONS

This possihility of rcin%tntiiigihc pi,\ir.r\ ih.11the fciriner Inter-Amcric:in
t'cacc Commiitcc h.id hcfurc it, Si;iiiiic uas ;~iiiziidIII\la). 1951,w<iuldhe

ver? hclp(ul. aith or wiih<iut an :amendcd l';ici oi Huguti: but in hct. hoth
things \h#>uldhr. Jonc. 'l'heSccretary (3cneral's \tudv. mcniioncd .thove con-
tains 3 ver! enl~ghtcn~ngreport on ihc work donc hy ihe Inter-Anieriiaii Pcscc
Ci>mmiitce and :ilru Icuns iowsrd riv-nr iue 1'crni:incnt Cc)iincil 111:iComniii-
tee's former functions in the future.

The pririciples ofpeacefi~lselflemenf

Before speaking about possible amendment of the American Treaty on
Pacific Settlement. perhaps it would be well to formulate some opinion of
what a treaty of this type should be and what il represents so that il has, ifno1

full viability, the gre;itcst possible viability.
First of all, let us turn to the principles of peaceful scttlcment of disputes.
Through the Charter. the Rio Treaty and the Pact of Bogot6 itself. the Orga-
nization has proscribed the use of thrcat or use of force, il allows force only in
the exercise of the inherent right to self-defense and in the cases provided for
specifically in the United Nations Charter. The inevitable consequence of
this proscription is to havc recourse 10 peaceful settlement procedures in the
event of a controversy between States.
Article 2 of the OAS Charter stntcs that one of the essential purposes of
the Organizatiou is: "(b) to prevent possible causes of difficulties and Io en-
sure the pacific settlement of disputes that may arise among the member

States". Article 3 (8) states. "Controvcrsies of an international character
arising between two or more American States shall be scttled by pcaceful
procedures".
Article 25 is clear in maintaining as a standard that,

"ln the event that a dispute arises between two or more Americzin
States which, iithe 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.''

And Article 26 says

"A soecial trcatv will establish adeuuate orocedurcs for the oacific
settlemént of disp;tes and will dctermine the appropriate means for
their application, so that no dispute between American States shall fail
of definitive settlement within a reasonable period."

The reform work done bv CEESI and bv the Permanent Council in 1977.
:inJ ihc udrk now hein!: don> (\ce thc docu&nt IbnCh;tpter V ai ths Chnricr.
prcpnrcd in I:it:Jul! 1035 hy Ciruup r\ of tlir.('tinirniiiceon Juridi::~l ;and

l'c~Iii~c:ll1:lIrskit!;IIIhccn ccarcd to h.i\c th< :irii~Ie~c1uotc.1.11>cnc cst.th.
lish clearly that the parties shaÏl have recourse to peacefuisettlement of thcir
controversies. not only new ones but also existing controversies betwcen
member States.
And, in terms of principles. we mus1 no1 fail to recall Article 1.1 of the
Unitcd Nations Charter which states that one of its purposes is:

"To maintain international peacc and security, and to that end: Io
take effective collective measures for the prevcntion and removal of
threats to the peace, and for the suppression of acts of agression or ANNEXES TO THE COUNTER-MEMORIAL 475

other hreaches of the oeace: ont1Io brinn aborrr b. .eacefirl means. and
in conformily wirh the principles of jusrice and inrer~lririonallaw. arljrrsr-
men1 or serrlemenr of inrer~iarional dispiires or sirirarions iohich mighr
lead roa breach of lhe peace."

Furthermore, the same Charter states in Article 2.3, "All members shall
serrlerheir inrernirlio~ialdisprrres by peaceful means in such a manner that in-
ternational peace and security, ;andjustice arc not c~idangered."
And, since thc OAS is a regional organ, Article 52of the Charter is a funda-
mental norm for governing ils relations with the United Nations in the field of
collective security and peaceful settlement of disputes. This standard should be
observed in the sense of guaranteeing that, although the member States of a
regional arrangement should make al1 possible efforts to achieve peaceful
settlement of local controversies through regional agreements before submit-
ting them tu the Security Council, Article 52 in no w;iy impairs application of
Articles 34 and 35 of the United Nations Charter. Therefore, the member
States of the OAS shall always he entitled tu have recourse to the Security
Council or tu the General Assenibly whenever they consider it necessary.
It is appropriaie and important tu note that Article 52.3 of the United
Nations Charter states

"The Security Council shall encourage the development of pacific
settlement of local disputes through regional arrangements or by such
regional agencies either or1thc initiative of the States concernecl or by
reference from the Securiiy Council."

This provision means that a regional arrangement should have adequate
rules and mechanisms to respond tu efforts toward pacific settlement of a
local controversy that may be referred to it by the Security Council. The
OAS, under this assumption. should have the means 10proceed, either upon
instructions or its own initiative. tu undertake such a mandate. But the OAS.
we repeat, does not have an organ that can, hy itself, take up the pacific settle-
ment of thlit controversy on its own initiative or under the terms of any
instructions it ma) receive. If the Permanent Council were given such a man-
date and if any of the parties did not accept the Council and its offers of good
offices for this purpose. there would be nothing il could do tu carry out the
mandate. This aspect is of greatest consequence in terms of allowing the
Security Council tu carry out this mandate. The legal inability of a regional
organ tu carry out the objectives of Article 52.3 of the United Nations Char-

ter could imply serious problems of incompatibility with that Charter, which
is the highest Içgal instrument.

tfow an amended Pacr coirld be designed

Under the principles discussed above, the amended Pact of Bugota could
be regarded as an instrument fully co-ordinated with the OAS Charter and
the United Nations Charter tu which the States parties could have direct
recourse, without fear of becoming subject to an obligatory procedure that
exceeds its purposes and its ideas as to what would be the most adcquate
procedure under the Pact itsell. This instrument could well have, on one
hand, simpler procedures to constitute the Commission or Commissions of
lnvestieation and Conciliation. such as a eeneral panel havine. two members
dcs~~ii~k~hv c:~shStnic Party. rtiihcr thai tlic procni multiliL systcni which

h;isnsvcr hcen iniplcmcntcd hy the partic,.476 13ORDIZ ARND TRANSBORDER ARMED ACTIONS

This would inean that good offices and mediation would continue to be
procedures ihat reqiiire mutual consent or agreement. The International
Court of Justice would continue to offer the possibility of acting. with binding
jurisdiction. in controversies of a juridical nature when only one party resorts
io il. It would niean that arbitration was a conventional recourse for al1types
of controvcrsies, under the commitment "(O rïach agreement", and the only
obligation of the parties would be to have rccourse to conciliation as a
mcthod whose solution. while also not being binding on the parties. would

no1 lead. because of failure or non-acceptance tu a continuation of the auto-
maiic procedures of the current system.
A treaty such as the amended Pact should provide a method io which al1the
parties would have biiiding recourse. We havc already seen how the European
Convenlion for Pacific Settlemçnt of Controversics provides, for this purpose,
a binding method for non-juridical controversies, conciliation, and for contro-
versies of a juridical nature, the International Court of Justice. The Revised
Act for Pacific Seltlçment of Disputes (United Nations, 1949) provided a
similar feature. Why could not the same be dune with the American Treaty
on Pacific Settlenient? What is there to fear?
If there were no procedures to which the parties would have binding

recourse. such as conciliation, if the amended Pact had only recourses of which
the parties could avail themselves when they wished. it would no1 correspond
10the principles set forth or tu Article 26 of the Charter. It would be a proce-
dural guide and no1an "Amcrican Treaty on Pacific Settlement". II could well
be called. "Treaty-Guide for Pacific Settlemeni Procedures". The position the
Rapporteur suggcsts is a middle road which would not constiiute any ground-
breaking initiative, hut would hclp tomake the Pact viable.
Obviously, a vnriarion is possible. Since there are American States that
have ratified the Pact without reservation and recognize, thereby, the auto-
matic working i~fthe Treaty in its full scope and consequences. such a varia-

tion would consist of stipulating that when conciliation has Idiled tu settle a
dispute. the States have two options:
"(n) by prior agreement betwçen the parties, in the eveni the concilia-
tion failed. the controversv would continue with the seuuencc of
the automatic procedures ;et out in the current Pact; anh.

(b) lacking such prior agreement between the parties, if the concilia-
tion fails. thecontro<ersy would no1be sub]ect to the sequence of
automatic procedures."
Then, when mediation fails the parties could seek another settlement pro-
cedure similar lo that contained in Article XII[.

Such an amïndment would only require adding one article to the third
chapter. on investigation and conciliation. or signing an additional protocol.
A parnllel rrealy:A treaty tu parallel thc Pact of Bogoti could be agreed
upon. This would be a simplified form. following the style of the su-called
Pact of Quito. formulated by Dr. Charles Fenwick several vears aeo. oruthe
European Convention or somc other similar instrument. ~h;s is not a contra-
dictory possibility. 11spurpose would be tu offer a new alternative to the
States which rnig-t find merit in it
A \rtl>p<>rr<><l~r.lw;i)s. iiiidcr :ln? ~uppi~iitia.h<iJy Io :~ithc Sixtes in>
(ilid:Ip:icilic icitlenicnt c~ihcrwithin or ouiside thc i';ict u,ouhc muit us<-
(ul i'erliapsfin ihis icssuii the R~o'lrr.at\. hx hccn :ghlc.th~oueh ihe Urt:in

of ~onsuitation and the peacemaking action provided for in Article 7,lo
serve the cause of pacific seitlcment by taking a very useful route, which. ANNEXES TO THE COUNTER-MBMORIAL 477

while criticized. is an example bcyond al1shadow of doubt of thc nccd for a
body of less severe consequenccs. which would revive real possibilities of the
reign of peacc in the Amcricas.

Rio de Janeiro. August 19, 1985.

(Sigrle[/) GGoLEORO F.,
Rapporteur. BORDER AND TRANSBORDER ARMED ACTIONS
478

Annex 24

AnOF CONTADORA FORPEACE AND CO-OPERATION IN CENTRAL AMERICA

(REV~SEDVERSION)'

[Sponishrexrnor reproducedl

0EAlSer.G
CPlINF.2222
24 October 1984
Original: Spanish.

October 24. 1984.

Excellency:
In accordance with instructions from our Foreign Ministries. we arc sending
Your Excellency a copy of the "Act of Contadora for Peace and Co-operation
in Central America". with the request that it be made known to the missions of

the member States.
Accept. Excellency, the renewed assurances of Our highest consideration.

(Signed):

RafaelLA COLINA, Roberto LEYTON,
Mexico. Panama.

FranciscoOSADADE LA PE~JA, Edilberto MORENO,
Colombia. Vrnezuela.

Her Excellency Monica Madariaga,
Chairman of the Permanent Council
of the Orgdnization of American States,
Washington, D.C.

ACTOFCONTADORA FORPEACE AND CO-OPERATION
IN CENTRAL AMERICA

(REVISEDVERSION)

The Governments of the Republics of Costa Rica, El Salvador, Guate-
mala, Honduras, and Nicaragua:
1.Awore of the urgent need for strengthening peace and co-operation

among the nations of the region through the observance of principles and

\SecII,Correspondence. Nos.44.51,and74. ANNEXES TO THE COUNTER-MEMORIAL 479

methods that will make possible greater understanding among the Central
Amcrican Govcrnmcnts;
2. Concerned over the situation prevailing in Central America, charac-
terized by a serious erosion of public confidence. by border incidents. the
arnis race. the traffic in arms. the prcsence of foreign adviscrs and other
formsof foreign military presence, as well as the use of the territory of some
States by irregular forces to carry out dcstabilizing actions against other
St:ites of the region.

Corivinced.

3. That the tensions and currcnt conîiicts could become more serious and
lead to a gcneral outbreak of war;
4. That the objective of re-establishing peace and confidence in the area
can be achieved only through full respect for the principles of international
law. particularly the principle concerning the right of nations to choose,
freely and withoot outsidc interference, the form of political, econoiiiic, and
social organization that best suits their interests, through institutions that
rcpresent the will of the people. freely cxpressed;
5. Of the importancc of establishing, developing, and strengthening demo-
cratic systems in al1the countries of the region;
6. Of the need to establish political conditions designed to guarantee the
security, integrity and sovereigiity of the States of the region;
7. That the achievement of genuine rcgional stability lies in the adoption
of agreements on matters of security and disarmament;

8. That, for the adoption of measurcs intended to hall the arms race in al1
ils forms, the national security interests of the States of the region mus1 bc
taken into account:
9. That militarv ,uoe.ioritv as a oolitical obiective of the States of the
region. ihc I>rc\cncuuf f<ircign.iJ<i\crs ;<ndothr,r forcigii pcrsonriel. 2nd the
arnis tr:ifFicni1:ingcr rc&i<,iinlsccuritv and ci>ii;tliutc dejt;ihili/in-. (;iriInrs
the area;
10. That the ;igreemcnts on regional security should be suhject to an effec-
tive system of verification and control:
II. That the deslabilization iofGovernments in the arca, usually expressed
through the promotion of or aid to irregular groups or forces, acts of terrorism.
subversion or sabotage. and the use of one State's territory for actions that
adversely affect the security of another State, is contrary to the basic rules of
international law and of peaceful coexistence among the States;
12. That the establishment of ceilines on militarv develonment. in keeoine

lion of a policy of détente should be based on the existence or a poiitical

confidenceamong the States that will tend to reduce the political and military
tensions among them effectively;
14. Recalline the ~rovisions adooted bv the United Nations in reeard to
the dciinitiiiii81 ac~rc.si<in. ~sl~cî'iïllsin rcs\iluiion 3311 (xsIx)'~~ the
Unilcd V;iti<insC;cncr;il A\\cnil)l\. ;tswcll ;athe pcrilncnt r~s~~lutions i~flhc
Organization of American States:
15. ïàkinu inro Accoirnr the Declaralion on the Strenethcnine of Interna-
tional Secur~y, adopted by the Uniled Nations ~ene&l ~ssembly in ils
rcsolution 2734 (XXV). as well as the correspondine. rele-ant legal ins-ru-
ments of the inter-~merican system:480 BORDER AND TRANSBORDER ARMED ACTlONS

16.Keoffirniitig the need. in those cases in which dcep divisions have becn
caused within the Society. for promoting actions of national reconciliation
that will enable the people to participate. in accordance with the law. in
democratic political processes.

17. That, beginning with the Charterof the United Nations in 1945and the
Universal Decliiration of Human Rights in 1948.vanous international organi-
zations and conferences have prepared and adopted declarations. covenants.
protocols. conventions. and statutes aimed ai providing effective protection
to human rights in gtneral. or to some of thcm spccifically;
18. That no1 al1 thc Central American States have acceptcd al1 cxisting
international instruments in matters of human riehts. and that it would be
desirable that thcy do so inorder to have a more c&nplete system in this field
that would meke possible respcct for a guarantee of human. political. civil,
cconomic, social. religious, and cultural Ïights:
19. That in many cases the shortcomings of an antiquatcd or inadequate
domestic Icgisl;ition interferï with effective rxcrcise of human rights as thcy
have been defiiicd in declarations and othcr international instrumcnts;
20. That it should be a concern of each State to modernize and adapt ils
legislation so that it will he appropriate for guaranteeing the real enjoymeiit
of human rights:
21. That onc of the most effective ways of bringing about the human rights

set forth in international instruments, the political constitutions. and the laws
of the various States, is for the judiciary 10 cnjoy sufficient authority and
autonomy to piil a stop to violations of thosc rights:
22. That. for this purpose, the absolute independence of the judiciary
should be gunranteed; and
23. That such guarantee will be achieved only if the officers of the judiciary
enjoy stability in their offices and the judicial branch has budgctary stability. so
that ils independence from other branches will be absolute and indisputable.

24. The nesd 10 introduce fair economic and social structures that will
build an authentic democratic svstem and allow their oe.olc.10excrcise fullv
the right to work. education. hialth, and culture;
25. The high degree of interdependencc of the Central Anierican coun-
tries, as well ns thc opporlunities ihe process of economic integration olfrrs
10 small counlries:
26. The facl that the magnitude of the cconomic and social crisis that is
affecting the region has made evident the need for making changes in the eco-
nomic and social structures that will make it possible to reducc the depen-
dcnce and promotc the regional self-sufficiency of the Central American
countries, rcaffirming their own idcntity;
27. The fact that the process of Central American economic integration
should constitute an effective instrument of cconomic and social develop-
ment, based on justice. solidarity. and mutual benefit:
28. The fact that it is necessary to reactivatc. improve, and rcstructure the
process of Central Ainerican Economic Integralion. with the active and insti-
tutional participation of al1the States of the rcgion:
29. The fiici that the Central Amcrican institutions and authorities arc ANNEXES TO THE COUNTER-hlEMORlAL 481

called upon to assume priniary rcsponsibiliiy for reforming the existing eco-
nomic and social structures and for strengthening the process of regional
intcgration;
30. The need for an advisability of undertaking jointly economic and so-
cial developmcnt programnies that will contribute lo the process ofecononiic
integration in Central America in the context of the dcvclopment plans and
prioriiies sovereignly adopted hy those countries:
31. The extensive needs for investment essential to the development and
economic recovery of the Central American couniries and the efforts these
countries have undertakcn jointly to obtain financing for specific priority
projects. and considcring the need Torexpanding and strcngthening the inier-

national, regional and subregional financial instituiions: and
32. The fact that the regi«n;il crisis has czused nizissiveflows of refugees
and that this situation deservcs urgent attention;
33. Concerned ovcr the constant worsening of social conditions. including
the situation of employment. education. health and housing in the Central
American countries:
34. Re<tffirming,withoui prejudice to the righi to resort to competent in-
ternational forums. their willingness to settle their disputes in the framework
of the negotiation process sponsored by the Contadora Group;
35. Recallirigthe support given to the Contadora Group by resolutions 530
of the Securitv Cnuncil and 38-10 of the General Assernblv of the United
Nations. as wéllas resolution AGlRES.675 (XllI-0183) of <he General As-
senibly of the Organization of American States; and
36.-Preprire<6 givc full implcmentation 10 the Documcnt on Objectives
and to the Standards for Exccution of the Commitmcnts Assumed in that
Document, adoptcd by thcir Miiiisters of Foreign Affiiirs in Panama on Y Scp-

iember 1983.and on 8 Janiiary 1984,respeclively. under the auspices of the
Governments of Colombia, Mexico. Panama, and Venezuela. which consiiiute
the Contadora Group.
Have agreed on the following:

ACI' OF CONTADORA FOR PEACE AND CO-OPERATION
IN CESTRAL AMERICA

PART1

GENERALCOMMITMENTS

Sule Section. Principles

The PARTIESundertake, in conformity with thc obligsitionsthey have con-
tracted in accordancc with international law:
1.To respect the following principles:

(il)Renunciation of the threat or the use of force against ihe territorial
integrity or theolilical independence of Staics.482 BORDER AND TRANSBORDER ARMED ACTIONS

(h) Peaceful settlement of disputes.
(c) Non-interference in the internal affairs of other States
id) Co-operation among the States in the solution of international problems.
(E) Equality of rights? self-determination of nations. and promotion of res-
pect for human rinhts
(fl ~overeien eaualil; and resvect for the riehts inherent in sovereientv.
G) ~efrainTn~ (rom Conductir;g discriminatory practices in economic'rela-
tions among States, respecting their systems of political, economic and
-
social orgaiization.
(h) Fulfillment in good faith of obligations contracted in accordance with
international law.
2. In compliance with those principles:

(01 ï hr.v shall :ih\inin frorii an? :iciiciii inc<imp:<iihlcwith ihr. purposcs :incl
yrinciplcz<ifihc (:li:rric<ifihc Ilnitcd FI:iIi<iiis:ioidihc Chartcr of ihc
~reanization of American States. aeainst the terriiorial inteeritv. ~olitical
indipendence, or unity of any of thCstates, and particularly f;om any simi-
lar action ihat would constitute a threat or use of force.
(hl Thev shall setlle their disoutes bv veaceful means in observance of the
fundamental priiiciples of'internatibnal law contained in the Charter of
the United Nations and in the Charter of the Organization of American

States.
(c) Tbey shall respect existing international boundaries between States.
(d) They shall ahstain from militarily occupying territory of any other State
in the region;
(e) They shall abstain from any act of military, political, economic, or any
other type of coercion intended to subordinate 10 their own interest exer-
cise by the other States of the rights inherent in their sovereignty.
(f) They shall take the actions necessary tu guarantee the inviolability of
their borders by irregular groups or forces that seek to destabilize the
Government of ;ineighbouring State from their own territory.
(g)They shall no1 permit their territory to be used to carry out acts that
would he contrary to the sovereign rights of other States, and they shall
keep watch su that conditions prevailing therein will not threaten inter-

national peace and security.
(h) They shall respect the principle ihat no State or group of States has the
right tu interfere directly or indirectly by armed force or by any other
form of interference in the internal or external affairs of another State.
i Thev shall resvect the rieht tu self-determination of nations. without exter-

Section 1. Commitments in Regard Io Regional I>étenteand Building of
Confidence

The PARTIESundertake:

3. To promote mutual confidence by eveiy means available and avoid anyaction capable of breaking the peace and security in the Central American area.
4. To abstain from issuing or promoting propaganda in favour of violence
or war, as well as hostile propaganda against any Central Amcrican Govern-
ment, and to coniply with and disseminate the principles of peaceful coexis-
tence and friendly co-operation.
5. For that purpose, their respective government authorities:

(a) Shall avoid any oral or written statement that may aggravate the situa-
tion of conflict the area is experiencing.
(b) Shall urge the mass media 10 contribute to understanding and co-opera-
lion among the peoples of the region.
(c) Shall promote greater contact and knowledge among their peoples through
CO-operation in al1 areas rclated to education, science, technology, and
culture.
(d) Shall jointly consider future actions and mechanisms thai willcontribute to
the attainment and strengthening of iiclimate of siable and lasting peace.

6. To seek jointly a regional solution that will eliminate the causes of ten-
sion in Central America, affirmingthe inalienable rights of the nations in the
face of foreign pressures and interests.

Section 2. Commitments in Regard 40 National Recnnciliation

Each of the PARTIESacknowledces to -he other Central American States
the commitmfnt assumed with its own people to guarantee the preservation
of domesiic peace as a contribution Io the peace of the region, and for that
purpose resolves:
7. To adopt measures aimed ai the establishment or, where appropriate,
the imorovemcnt of re~resentative and oluralistic democratic svstems that
will guarantce the elfeciive participation Ofthe people, politicalli organized.
in decision making and that will assure free access by the diverse currents of
ovinion to honestëlections held at resular intervals, based on full observance
oi the rights of citizens. -
8. In those cases in which deep divisions have been caused within the
societv. to vromote on an urwnt basis actions of national reconciliation that
wil~ ~~ ~le'the oeoole to 0a;iicioate. with full euarantee. in authentic demo-
cratic political processes based on justice, freedom, and democracy: and, for
that Durpose, to establish mechanisms that will permit. in accordance with

lawi)d'l'o issuc. and uhcre al>prc,pri:iteto .<uihcntic:iic. exp:inJ. :inJ 1mprot.c

Icgnl ,t;inJnrd, ih.itu,iulJ (disr ;igenuiiie ;amncity th;it uould pcriiiit il\citi-
IL^ i,hc fulli riincorri~ir;it~Jiniciits p<ilitic;~lc.coniiniic. :inJ sii~i.ilIifc
In the samé way, t6 guarantee thc'invio~abilit~ of the life, freedom, and
personal safety of persons granted amncsty.

Section 3. Commitrnents in Regard to Human Rights

The PARTIESundertake, in ci~nformitywith their respective domestic laws
and with the obligations they have contracted in accordance with interna-
tional law:
10. To guarantee full respect for human rights and, for that purpose, to
comply with the obligations containcd in the international legal iiistruments
and the constitutional provisions on the subject.484 BORDER AND TRANSBORDER ARMED ACTIONS

II. To begin their rcspectivcconstitutional proccdures to becomc parties
to the following international instruments:
(a) lntcrnational Covenant on Economic, Social and Cultural Rights, of

1966.
(b) International Covenant on Civil and Poliiical Rights. of 1966.
(c) Optional Protocol to the International Covenant on Civil and Political
Rizhts. of 1966.
(d) International Covenant on the Elimination of All Forms of Racial Dis-
crimination. of 1965.
(e) Convention on the Status of Refugees. of 1951.
(f) Protocol relating 10the Status of Refugees, of 1967.
(g) Inter-American Convention on the Granting of Political Rights to Wiinicn,
of 19~-.
(h) Convention on the Eliinination of al1 Forms of Discrimination against
Wonien, of 1979.

(i) Protocol Amending the Convention on the Abolition of Slavery. of 1926.
(j) Supplemenlary Convention on the Abolition of Slavcry. the Slave Trade.
and Institutions and Practices Similar to Slavery. of 1956.
(k) Convention on the Political Riehts of Women. 1953.
(1) Anierican Convention on unia a Rights, 1969;taking note of ils Articles
45 and 62.
12. l'o prcpare and submit to their competïnt intcrnal organs the neces-
sary legislative initiatives for the purpose of expediting the process of revis-

ing and updating their laws so that they will be better suited to foster and
guarantee due respect for human rights.
13. To prepare and submit to the competent interna1 organs legislative ini-
tiatives aimed al:
(CI)Guaranteeing the stability of officials in the judicial branch so thnt thcy

can operate without political pressure and can themselves guarantee the
stability of subordinaie officials.
(b) Guarantceing the budgetary stability of the judicial branch so that ils
independence from the other branches will be absolute and unquestion-
ahle.

Section 4. Commitnients in Regard Io Elednral Processes and
Legislative Co-operation

Each of the PARTIESacknowledges 10the other Central American States
the commitment assumcd with ils own nation 10 guarantee the preservation
of domestic peace as a contribution to peace in the region, and to this end
resolves:

14. To take the appropriate measures that will guarantee under equal cir-
cumstances the oariici~ation of ~olitical oarties in the electoral orocesses.
ensuring their akess 1; the mass commun;cation media and their fkedom of
assembly and expression.
15.They also undertake:

(a) To put the following measures into practice:

1. To promulgate or review laws on elcction in order to hold elections
that will guarantee eflcctive participation by the pcople.
2. To establish independent elcctoral bodies that will prepare a reliable ANNEXES TO THE COUNTER-MEMORIAL 485

lis1of registercd voters and that will ensure that the process will he

viirious currcnts of opinion.
4. To cslablish an election schedulc and to take measures that will cn-
surc participation by the politic;il parties under equal circumslances.

(h) l'o propose to their respective legislative bodies:

1. That ihev hold reeular meetines al alternate sites that will m;ike il

of the area.
2. That they take measures to maintain relations with the Latin Ameri-
can p;irli;iment and the respective working committees.
3. That thcy exchange information and experience on matters ol their
compctenceand that, for purposes of a comparative study,they compile
the election Iawsin effect in each country, as ivellas related provisions.
4. That they he present as ohservcrs ;il the various stages in the clec-
tord orocesses carried out in the rceion. For this ~u.~osc. il will he
iiidispcns;ihleIO Ii;ii.c;in c\prc\s in\iI;iti<,n ir6ini ihr Ccn1r;il ,\nicri-
c;iii St;iie ciig:i%cJin thc clcc1i1r:ilprocGs,
5. .Ch:ii lhcv hold rcshnic;tl nieciinCs ;XIrecul:ir tnIcri,:ilb in lhc pl;icc
and wiih ilic aqcncy Jctcrniinecl bi coiiscn'sus;xc.ich ~ircccdingmeci-

ing.The ii:iiurc ofihc fir\l meclin9 shnll hc dctcrniiiicJ through coii.
sult:ilion niili lhc C'r,iitralA~ii~<ricIirc~gnIlllnl~lrIc~.

CHAPTERIII

In accordance with the ohlij:ations they have undertakcn in accordancc
with in1crn;itional law, the PAR'TIES assume the following commitments:

Section 1. Commitments in Regard to Military ManŒuvres

16.To abidc by the lollowing provisions in holding military manccuvres:

(0) In the cvent national or joint military nianmuvres are held in arcas within
thirty(30) kilometres of the bordcr. the corresponding advance notice
shall be made to the bordcring countries and Io the Commission for
Vcrification and Control reierrcd 10 in Part II of this Act. al lcast thirty
(30) days in advance.
(hl The notification shall contain thc following items:

1. Dcsignation
2. Purposc
3. Participating forces
4. Geographic locations
5. Schcdule
6. Equipment and weapons to be used.

An invitation must he extended Io observers from hordering counlries.486 BORDERANDTRANSBORDER ARMED ACTIONS

17. Tu nroscribe the holdine of international militarv manŒuvres in their
corrc\puiiding ierrii<iric\. An! nianwuvre of this kind tvhich is undrr wa? 5h:ill
be su\pcndcil within thirty diiys nftcr th13,\ci i, \igncd.

Section 2. Cummitments in Regard tu Weapons
18. To stop al1aspects of the arms race and immediaiely tu begin negotia-
lions on the control and reduction of the current weapons inventory and on
the number oi iroops under arms.
19. Nol Io introclucc new weapons systcms that will qualitatively and
quantitatively change current inventories of war matériel.
20. Nol tu introduce. possess or make use of chemical, biological, radiolo-
gical or other weapoiis that can be considered excessively noxious or as having
indiscriminate effecis.
21. Tu send the Commission for Verification and Control their respective
current invcnti~ries of weapons, installations and troops under arms within
thirtv(30) davs iollowine the date on which this act is siened. The inventories
sli3lihi p;epircd in xsoLrd:inccwith the h:isicdr.iïiiiti<ins:ind siaiidlirrl\ dciirlcd
upon in the Appcndix ;ind in item 72of thiçscctinn. Upun rcceiving Ihr.invento.
ries. thc Commirsitin s1i;iIliiiihin ihirtv dzih c:irry <>utthe tcchnic:il sth:st\
uill servelaic\i:ihlish cciling\ on ihc iriilitnn Jci.clopm(ifihc rqi~n's S~I~CS.
taking ini~,~iccouiittheir ntation31sc:urity int;rcsi\. aitsiup ihc ami, r.ice.
H:i.cJ dn tlic fi~rici~iny.IIICI'\111::i,!ric1,)the i~~lli,u~nr:l;iic\ inii)lr.-
mentalion: .. - - -

First stage: Once they have delivered their respective inventories, the
PARTIESare tu cease al1acquisition of war matériel. The moratorium shall be
in effectuntil they decide upon ceilings in the second stage.
Second stage: The PARTIESshall establish ceilines within thirtv davs for
weapons of the iollowing kinds: combat aircraft and he~ico~ters,tanks Ad ar-
moured vehicles, artillery pieces. short-. medium-. and long-range rockets and
nuided missilesand Iziunchers. militan. shi.sor vessels and ihinsor vessefsthat
Fan be used for militar~,r~~~r----~
hir rstage:Aftcr conclusion of the preceding siagc and within thirty days.
the PARTIESshall cstablish ceilina- on troops and on installations that can be
used in militarv aciivities.
Fourth stagé:The PARTIESmay initiate negotiations on matters whose dis-
cussion is considered indispensable. Despiie this, the PARTIESmay by mutual
agreement change the dcdlines set for ihe ncgotiation and establishment of
ceilings.
22. The following basic standards shall determine thc Central American
States' miliiary development ceilings, in accordance with the requirements of
stabiliiy and security in the region!

(a) No armed institution shall have the poliiical objective of seeking hege-
mony over the oiher forces considercd individually.
(b) The definition of national security mus1consider the cconomic and social
development exisiing at a specific lime and the development sought.
(c) For its determination, siudies covering the following aspects in general
mus1 be made:
1. Appreciation of the State's domestic and external security requirements
2. Territorial extension
3. Population ANNEXES TO THE COUNTER-MEMORIAL 487

4. Distribution of economic: resources. infrastructure and population in
the national territory
i I.engtli .,nJ niiiurc rii I:gnJ:iiiJ IiiJritinic h<,rilcr.
h hl~l~l:jr!cxp~nJiti~rc>UIIIIrcI.111c1 O $rd>, J,~!iic\ti: pr~,Ju:t l(nI>t')
7. hlilii3r\ hi.ilcr.\\iih rcl.ttiontii piihli~.c'xpciiJ11~r.r :inclln c<,mli:iri-
.
son wiih othër social indicators
8. Geographical features and situation and geopolitical position
9. Highest level of military technology suitable for the region.
23. To initiate the constitutioiial procedures so that, in the event they have
not already donc so, they will be in a position to sign and ratify or accede to
treaties and other international disarmament agreements.

Section 3. Commitmentsin Regard to Foreign MilitaryBases

24. Not to authorize the installation in their respective territories of foreign
military bases or schools.
25. To eliniinate the foreign military bases or schools existing in iheir
respective territories within six months from the date this Act is signed.

Section 4. Commitmentsin Regardto Foreign MilitaryAdvisers

26. To deliver to the Commission for Verification and Control a list of
foreign military advisers and of other foreign personnel participating in mili-
tary and security activities in their territory within thirty days following the
signing of this Act. The definitionscontained in the Appendix shall be taken

into account in preparing the list.
27. To cstablish a schedule for eradual withdrawal with a view to elimi-
1i;it~oi<> th; iorcirii iriilir.~.I~VI>~.;\jn.1 o1hc.rforci-il (>~,rx>nn~n J.hicli UIJI
1n:luJ; tlic iiiinir.,li.itr.a~tliJr:i\i;tl uf thi,.c :tJwhu :Ire ~icri.,riiiint Julie,
in operational and training aress. For this purpose, the studies andyecom-
mendations of the Commission for Verification and Control shall be taken
into account.
28. A control registry shall be maintained concçrning the advisers who
oerform technical dulies related to the installation and maintenance of mili-
iary equipment, in accordance with the tcrms established in the corresponding
contracts or ayrçements. Based on this registry, the Commission for Verifica-

tion and ContÏol shall actemm to establish-reasonable limits on the nuniber of
adviscrs of this kind.

Section 5. Commitmentsin Regard to Arms Trafic

29. To climinate the intraregional and extrareeional traffic in wçaoons

ing strips, ports, terminals,'bo;cier passes, lad, air, "cean and river routes,
and at any other point or area that can be used for arms traffic.
31. To denounce violations in this matter based on presumption, or on veri-
lied facts to the Commission for Verification and Control. with sufficicnt terms

of rcicrcncc 1.)cilst>lcitirrc;lrr! <)ut111ll.ci:\):lrin\~.~tl,::~il~n:$n.1<1prv\ctit
wh.itc\cr ci>iiclu>i~~n :i.nJrc~~~i~iiiicnil.ii~~I~~i:,! dccni ;iJ\i\.ililc \Vhcn pcr-
tinent. and for ourooses of verification. the foll;wine cri-eria. amone others.
shall be taken into'account:488 BORDER AND TRANSBORDER ARhlED ACI'IONS

(a) Origin of the arms traffic.
(b) Personnel involved.
(c) Type of weapons. munitions, equipment and other kinds of military sup-
plies.
(d) Extraregional means of transportation.
(e) Extraregional transportation routes.
(fj Storage bases for weapons, munitions, cquipment and other kinds of
military supplies.

(gj Intraregional traffic areas and routes.
(h) International means of transportation.
(ij Receiving uniis.

Section 6. Commitments in Regard tn Prohibition of Support to
Irregular Forces

32. To refrain from providing any political. miliiary or financial support
or support of any other kind to individuals, groups. irregular forces or armed
bands that advocate the overthrow or destabilization of other Governments.
and to prevent with ;IIImeans within their reach uiilization of their territory
for the purpose of attackiny or oryanizing attacks. acts of sabotage, abduc-
tions orcriminal acts in theterritorv of aiother Statc.
33. To exercise close surveillanie over their respective borders for the

purpose of prevcnting thcir own territory from being uscd to carry out any
armcd action a~ainsta neiphhourine State
34. To disa& and wiihdraw from the border area any irregular group or
force that has been idcntilied as being responsihle for actions against a nïigh-
bourine Statc.
35. ?O disniantle and deny the use of installations. means and facilities for
logistical and operational support in their territory when il is being uscd to
undertake actions against neighbouring Governments

Section 7. Cummitments in Regard to Terrorism, Subversion or Sabotage
36. To refrain [rom providing political. military or financial support or
sunoort of anv other kind Io subversive. terrorisi or sabotaec activities de-

organized within thïir tcrrito~y aimed at the commission of such &S.
38. To comply wilh the following international ireatics and conventions:
(LI) The Hague Convention for the Suppression of Unlawful Scizure of Air-
crrlii. ~

(h, ('i~nv-niii>iio I'rc\~ciii;I~J Puiii\ihr.,\il>1~f'I'crr<>ri\ï':ikins 111Fciriii
of Crinie, :tp;~instPerron5 :andK:l:ii.'J Estortion th.1Arc of Inir.rn;~ii~in;il
Significance.
, , Convention for the Suoor..sion of Unlawful Acis aeainst -he Safetv of
Civil Aviation.
(d) Convention on the Prevention and Punishment of Crimes against Inter-
nationally Protected Persons. lncluding Diplomatic Agents.
(e) International Convention against the Taking of Hostages.

39. To initiale constitutional procedures so thai, in the event they have
not already doiie so, ihey will be in a position Io sign and ratify or accede to ANNEXES TOTHECOUNI'ER-MEMORIAL 489

the international treaties and agreements mentioncd in the preceding para-
eraoh.
" 40. To respect the commitmeiits set forth in this section. without prejudice

to compliance with the international treaties and othcr agreem-nts concern-
ine..io.omatic and territorial asvlum.
41. 1%)prcvdni IIIilic~r:,irre\p~inJiii~ icrr~i.)ric~p:irtiCip.itiIIIirin~tn<~l
:ICI>h\ ~nJi\i.l~i.tl\helongitigIO iorcigii tcrrcBri>iArcb..p\<>rctrg.$ni/,~ii~~~li:\,~r
tliiri>iirrr<rs<I,l.ih:ill\ircncthi.n thc CO-<ipcr.iii,iiii the rcini,ii.ihlc.irii~<,
in migr~tory and-poliiical maïters and co-operation among thécorresponding
civil authorities.

Seclion 8. Cnmmitments in Regard to Direct Communication Systems

42.To establish a regional conimunication system that willguarantee imme-
diare and timely conneciion between the competent governmental and military
authorities. for-the ouroose of orcventine inc-idents.'
43. To establish AiGd secu;ity comm~ssionsfor the purpose of preventing
and settling conflicts hetween neighbouring States.

Sectiun 1. Cnmmitmentsin the Ecnnnmic and Social Area

To strengthen the process of Central American economic integration and
the institutions which consiitute and support it. the PARTIESundertake to do
the following:

44. To revitalize, improve and reorganize the process of Central Ameri-
can economic integration, harmonizing it with the various forms of political,
economic and s<icialorganizatioii of the area's countries.
45. To ratify rcsolution 1/84 of the XXXth Mccting of Ministers Respon-
sible for Central Amcrican Ecoriomic Integratiiin. of 27 July 1984, aimed at
rc-establishinent of the institutional nature of the Central American integra-
tion process.
46 To support and encourage the adoption of agreements aimed at streng-
thening intra-Central American trade in the legal framework and spirit of inte-
gration.
47. Nol to ad«~t or suvvo.. cocrcive or discrirninatorv measures detri-
mcni:sl 1,)ihc cconoiiiy of ail? of th: Ccniriil r\meric;in counirici.
4s. '1' rrdopi niciisuro tiimcJ :iisircngihcning ilic ;$re;is0ii:incial ;igençi:s.
includinr. cimt>ni:c~thcri.ihc I:ciiirdl r\nicric;iii H:inkl'orEciinimiic Iritcrrn-
tion. ~u~~ortin~?heirefforts toward obtaining rcsources and the diversifieaïion
of their operations, preserving the decisive power and the interests of al1the
Central American couniries.
49. To strcngthcn the multilateral payment sysicms of the Central Ameri-
can Fund of the Common Market and to revitalizc those which are accom-

plished through thc Central Anierican Clearing House. Available interna-
iional financiil assistance mav he soueht to sunDo.t.thcse aims
5U. '1< ,ndcri:~kc\citor:il CO iipcr;iiiic prulc:tb in ilic :ire;, \u15ihc clc;.
trtc energ!' production .andJi~iritiutii~ns!.ir.n~. thc rcgion:il fiioil sccuri\y>-490 BORDER AND TRANSBORDER ARMED ACTIONS

lem, the plan for priority health requirements in Central America and Panama
and others that will contribute to Central American economic integration.
51. To examine jointly the Central American external debl problem based
on an evaluation that will take into account each country's domestic situation,
its ability to pay, the area's critical economic situation, and the inflow of addi-
tional resources necessary to cover ils economic and social development.
52. To support the process of preparation and subsequent application of a
new Central Americün tariff and customs system.
53. To adopt joint measures for the defence and promotion of their
exports, integrating in sa far as possible the stages of processing, marketing,
and transportation of their products.
54. To adopt the necessary measures to grant juridical personality to the
Central American Monetary Council.
55. To suooort at the hiehest level the efforts made bv CADESCA. in co-or-
.. u
diiiatii,i.rritjuhrc<ii,n;il :igr.n<i1%)i,hi:iin froni Ihc inicrn:iiti,n;8lccmmu-
nily ihe nc<e\rlir! iiii;iiiii;ilrcsourcci ior Csiiir;~lAiiicricas econoniic ricu\cy
56. T~I,IPPIY~ntcrn.it~oi~;l~;th~~ur\i;ind:ird\ ;in4 .id:thtir 111tcrn:1CL!IS-
lations to the&. with CO-operationfrom the 1LO. in pariicular those that con-
tribute to the recovery of Central American societics and economies. In addi-
tion, also with 1LO's CO-operation, to develop programmes for employment
generation. labour training and instruction, and the application of appro-
priate technologies that will include greater use of each country's manpower
and natural resources.
57. To ask the Pan American Health Organization and UNICEF, as well
as other development agencies and the international financial community, for
their support in financing the Priority Health Needs Plan for Central Ame-
rica and Panama approved by the Ministers of Health of the Central Ameri-
can lsthmus in San Joséon 16 March 1984.

Section 2. Commitments in Regard to Hefugees

The PARTIESundertake ta makc every eflort aimed al the following:

58. If they have no1donc so yet. to tzikeal1steps required under the Con-
stitution ta accede to the 1951Convention on the Status of Refugees and the
1967 Protocol relating to the Status of Rcfugçes.
59. To adopt the terminology establishcd in the Convention and in the
Protocol referred to above in order to distinguish refugees from other catego-
ries of immigrants.
60. To establish the necessary interna1 mechanisms to apply the provisions
of the Convention and Protocol referred ta in paragraph 58 al the time of ac-
cession.
61. To establish mechanisms for consultation among the Central Ameri-
can countries with representatives from government offices responsible for
dealing with the problem of refugees in each State.
62. To support the work of the United Nations High Commissioner for

Refugees (UNHCR) in Central America and to set up direct CO-ordination
mechanisms to facilitate carrying out its mandate.
63. To ensure that any repatrizition of refugees shall be voluntary, per-
sonally attested to and with the co-operation of the UNHCR.
64. In order to facilitate the repatriation of refugees, to set up tripartite
committçes made up of representatives of the State of origin, the rcceiving
State. and the UNHCR. ANNEXES TOTHECOUNTER-MEMORIAL 491

65. To strengthen the programmes for protection of and assistance to
refugees, particularly rcgarding health, education, work. and security.

66. To establish programmes and projects aimed at the self-sufficiency of
refugees.
67. To train the officials responsible in each State for refugee protection
and assistance, in co-operation with the UNHCR or other internationzil agen-
cies.
68. To appeal to the international community for immcdiatc siid l«r Cen-
tral American refugces, both directly through bilateral or multilateral agree-
ments and through the UNHCR and other organizations and agencies.

69. Working in co-operation with the UNHCR, to seck out other coun-
tries that may be willing to receive Central American refugees. In no case
shzilla refugee be taken to ztthird country against his will.
70. That the area Governnients make every effort to eradicate the causes
behind the refugee problem.
71. That once the bases for voluntarv and individual renatriation have
hccri nyrccd upun. uith lu11gu;ir:~ntccskir r~.lu~>c.cr\c.icii,ins counirie\ ;ilIoe.
ofiici;il ,lr.lcg:iiii~ii\lroni thc couni~fc>rigin1,) tisii relugcc c;imps. in the

comp3ny of reprcscn1;itivc~ of ih~.lJSlI<.'K ;and i,f tlirccciiing iouniry
72 Ih;it. in CO-airdin:iiionu,ith ihr. IJUII('R. rcxi\,ing coiintric~ larilit:tic
ihc proccdurc's in\<il\c.J in Ihr. rlr.p:iriii,ifrr.f.gr.c>ahcn Ihey arL.vi~lun-
tarily and individually repatriated..
73. To establish measures in receiving countries that will help avert refu-
gee participation in zictivities directed against the country of origiii, while
observing at al1limes lhc human rights of the refugees.

COMMITMENT IN REGARDTOEXECUTION AND FOLLOW-UP

7he PARTIESagree Io establish the following mechanisms for execution
and follow-up of the commitments undertaken herein:

1. Ad hoc Conirnirteefor Evoliiotion of and Follow-rdpon Co~?i~?iitmenrosn
Political Marrers on(/ in Regor(/ IO Refugees

(a) Composition

The Committee shall be composed of five (5) persons of recognized
competence end impartialiiy proposed by the States who make up the
Contadora Ciroup and accepted of common accord by the PARTIES.The
nationalities of the membcrs of the Commiltee shall be distinct lrom
those of the PARTIES.

(b) Functions

The Committee shall receiv~~~nd evaluate the renorts the PARTIES
underlake to submit on how they have complied with the commitments
regarding national reconciliaiion. human right.. electoral processes, and
reiugeesy
In addition, the Committee shall be open to communications on these
matters sent to it for information by organizations or persons that may

provide useful elements for the evaluation.
With those elements, the Committee shall prepare a pcriodic report ANN'XBSTO THE COUNTER-MEMORLAL 493

(1) Origin of weapons traffic: The air or seaport used to ship the
weapons, munitions. equipment and other types of military sup-
dies eoine to ihe Central American region should be snecified
~~o - "
under this criterion.
(2) Personnel involved: Pcrsons, groups or organizations involved in
arrane..evor czirrv.ne..ut weanons traflic. includine the narticipa-
IIOII ($Ci~~\criimciits thcir rcprcwnt;iti\c\
(31 'l'!pc.: uf ric..ilioiis.niunitii~n-.squil>ni~,ni;inil d1hc.rt)lic.iiniili-
tir iiririlici ,\ Jcscrintidn a'illhc pr.,i.iJcrl unilcr thi, s.itr.qurv
as io th'eiype and calibke of weaponi, the country of manufacÏure.
whether the country of origin is other than the country of manu-
facture. as well as the quantities of eachtype of weapon, munition.
equipment and oiher types of military supplies.
(4) Extraregional means of transport: The means of land. sen or air
transport should be indicated. including nationaliiy of same.
(5) Extrareeional transnortation routes: Definition of the Iraffic routes
\~,
that ha& been utihzed prior to reaching Central Americzin terri-
tory. includinf!siopovers or intermediate destination points.
\,) aies where bca~ons. munitions. eouiomen. .nd oiher tvncs of ..
military supplies are stored.
(7) Areas and routcs of intraregional traffic: Description of the areas
and routes and the involvement or acquiescence of Governments
or of govcrnmcntal or political sectoFs in carrying out weapons
traffic. Inclusion of the frequency of utilization of such areas and
routes.
(8) Means of internaiioiial transoort: Deterniinaiion of the means of
~, transport utilized. to whom they belong and the measures tziken by
Governmenis. political or governmental sectors to facilitate such

transoort. indicatine whethër il involves clandestine fliehts Izindine.
and ;nloading w;ir Latériel or dropping it off by parachÜte. and th;
utilization of small mntor boats loaded on the high seas.
(Y) Receiving unit: Determination of the identity of persons. groups
and organizations 10 whom weapons are shipped.

- To verify compliance with this Act in so far as concerns irregular
forces and the non-utilization of a State's own territory in a destabi-
lizing action against another State, as well as looking into any denun-
ciation in this regard.
- To verify complinncc with the procedures for rcporting national or
joint military manixuvrcs covered under this Acl.

(d) Standards and Procedures

- The Commission shall hear any well-foundcd denunciation of viola-
tions of the securiiy commiiments undertaken in ihis Act. shall in-
form the PARTIESinvi~lved and shall initiate any investigations it
may deem appropriale.
- The Commission shall eonduct ils investigations by means of on site
inspection. the taking of tcstimony and any oiher procedure it may
deem necessary for carrying out ils functions.
- The Commission shall draw up, in the case of denunciations of viola-
tions or failurc io comply wiih the commitments underiaken in this
Act in security mattcrs. a report containing recommendations addres-
sed to the PARTIESinvolved.494 BORDER AND TRANSBORDER ARhlED ACTIONS

- The Commission shall forward al1 its reports to the Ministcrs of
Foreign Affairs of Central America.
- The PARTIESshall extend full CO-operation to the Commission. Dro-

viding il uith proriipt ;ind hriitid ,issist:ince to ~niiitro adcqu;iicly
c:irr! <>utits f~nriii~n, i'licConimi\\i<~n~h;illeii.rurc thc c<~nfiJenii;i-
litv of;ilinformation rcqucstcd or rcccivcd in the course of ils invcs-
tigations.
(e) Rules of Procedure

Once established, the Commission shall draw up its own Rules of
Procedure and shall inform the PARTIES thercof.

3. Ad Hoc Cr~nlniirreefor Evaliiarioti of und Follow-i~pon Cornrniirnentsin lhe
Econonlic [nid Social Areci
(O) Integraiion

For purposes of this Act. the Mccting of Ministers Responsible for
Central Anierican Economic lntegration shall become the Ad Hoc Com-
mittee for Evaluation of and Follow-up on Commitments in the Econo-
mic and Social Area.
(b) The Committec shall receive the reports of the PARTIESwith regard to
progrcss in carrying out commitments in the economic and social area.
The Committee shall reeularlv conduct evaluations on oroeress made
.. , ..
Inc;irr!in$ oui c.>niniiinicnt\ in the ccoiicimic :inJ \abcial.Ircit. fair uhiili
purpose il will h.1b.e;~i\iiil;ihlct.he iniormalion g;iihcrcd b\, ~hcI'AKI'II:'~
andbv the comr>etcnt international and rceionil oreanizaiions.
hé Commiitee shall present. in ils rrgular reports. proposals for
strcngthening regional CO-operationand furthering development plans,
wiih particular emphasis on~the aspects pointed out in the commitments
in th& Act

PARTIII

FINALPROVISIONS

1.The commitments undertaken hy thc PARTIESinthis Act are juridicill iii
nature, and therefore. binding.
2. This Act shall he ratified in accordance with the constitutional proce-
dures cstablished in each of the Central American States. The instruments of
ratification shall be deposited with the Governments of the States making up
the Contadora Group.
3. This Act shall go into effect when the fivc Central Amencan signatory
States have deposited their instruments of ratification.
4. Thc I'AK~IES .l>of lhe Jillc of sign~iur~. 5h;illiihstniifr\im ;an! ;iciiuns
ivhcrchy Ili?ohjcciivc :ind purprose iifihi>Ac1 ni;iy hc dcfe:ticil

5.'l'hc~iicch;ini~m> rclcrred t,?in F',~rIl\hall corne inio nr,~v~s~c)n.oiIncr,t-
lion thirty (30) days alter the date of signature of this Act.
The PARTIESshall take the necessary mcasures, prior 10 this deadlinc. to
cnsurc such provisioiial operation.
6. Any dispute regarding the interpretation or application of this Act that
has not bccn resolved through the mechanisms envisaged in Part II shall bc
submittcd 10 the Ministers of Foreign Affairs of the PARTIES for their conside-
ration and decision, nhich will require the affirmative vote of al1the PARTIES. ANNEXES 70 THECOUNTER-MEMORIAL 495

7. Iiilhc c\,cnl the di\putc li~,rsislII\hall hc suhniitiid 18,lh' Irlinis1r.of
t<~rcigiiA1f:iir.of ihc Ci>nt;idi,iaCiroup, who sli;illmecl sithe rcqucs1 of ;in?
of th;PARTif<S.
8. Thc Ministers of Foreign Aff:iirs of the States making up the Contadora
Group shall usc their good offi<:esin order thiit the PARTIESinvolved miiy be

able to resolve the s~ecific situatir~nsubmitted 10 them for consideriition. If
the problcm is no1 sklved through this procedure, they may suggest nnother
means of peaccfully resolving the dispute, in accordance with Article 33 of
the Charter of the United Nations and Article 24 of the Charter of the Or-
ganization of American Statcs.
9. This Act does not allow for any reservations.
10.This Act shall be recorded by the PARTIESwith the Secretary-General
of the United Nations and the Secrciurv General of the Oreanization of
American States, in accordance with ~rtide 102 of the Charter of the United
Nations and Article 118 of the Charter of the Organization of American
States.

Donc in the Spanish langiiagç in ninc original copies, in thc city of
on , 1984.

The PARTIESagree on the following definitions of military terms:

1. Registry: Numerical or graphic data on military. paramilitary and secu-
rity personnel. as well as military installations.
2. Inventory: Iletailed list of weapons and military equipment of national
or foreign ownership. with the largcst possible number of specifications.
3. Census: Numerical data on foreign military or civilian personnel czirry-
ing out advisory funclions in matters of defence andior security.
4. Militiiry installation: Eslablishmcnt or infrastructure including airports.
barracks, forts, encampments, and air, naval or similar installations under

military jurisdiction, including their geographical location.
5. Organiziiiion and equipmçnt chart (OEC): A document stating the mis-
sion. organization, equipment. capacities and limitations of a standiird mili-
tary unit at ifs various levels.
6. Military equipment: Individual and combined material of national or
foreign ownership used by a military force in order to sustain itself and con-
duct operations, no1 including weapons.
7. Classification of weapons:

(rr) By kind:
1. Conventional
2. Chemical
3. Biological

4. Radiological.
(h) By range:

1. Short-range: Portable individual and collective weapons
2. Medium-range: Non-portablc support weapons (mortars. howitzers and
artillery pieces)
3. Long-range: Rockets and guided missiles, which in turn are divided
into:496 BORDER AND TRANSBORDER ARMED ACTIONS

(a) Short-range rockets: maximum range under twenty (20) kms
(h) Long-range rockets: range of twenty (20) kms or more
(c) Short-range guided missiles: maximum range isup to one hundred
(100) kms
(4 Medium-range guided missiles: range from one hundred (100) kms
to five hundred (500) kms

(ej and up.nge guided missilcs: range from five hundred (500) kms

(c) By calibre and weight:

1. Light: one hundred and twenty (120) millimetres or less
2. Medium: over one hundred and twenty (120) millimetres and less than
one hundrcd and sixtv (160)
3. Heavy:over one hunirèd aAdsixty (160) millimetres and less than two
hundred and ien (210) millimetres
4. Very heavy: over iwohundred and ten (210) millimetres

(d) By trajectory:
1. Flat trajectory weapons
2. Curved irajectory weapons

(a) Mortars
(h) Howivzcrs
(c) Artillery picces
(d) Rockets.

(e) By means of transportation:

1. On foot
2. By horse
3. Towed or drawn
4. Self-propelled
5. All weapons that can be transported by road, railroad, boat or air
6. Those transported by air are classilied as follows:

(a) Helicopicr-borne
(b) Air-borne.
8. Features to take into account in the different types of airplanes and
helicopters:

(a) Model
(b) Number
(c) Crew
(d) Make
(e) Speed
(fl Capacity
(g) Propulsion system
(h) With or wiihout guns

(i) Type of armameni
(1) Operational range
(k) Navigation sysiem
(1) Communications system
(mj Type of mission pcrformed.
9. Features to consider in the various ships or hoats:498 IIORDL?RAND TRANSBORDERARMED ACiIONS

(a) Security forces

1. Border guards
2. Urban and rural guards
3. Military forccs attached to other ministries
4. Public security forces
5. Training and <levclopment centre
6. Others.

(b) Naval forces
1. Location
Type of base
Number and features of the naval fieet. Type of weapons
Defencc svstem. Tvv..of weavons
5. Communications systems
6. War matériel services
7. Air or land transportation services
8. Health services
9. Maintenance services
10. Quartermaster services
11. Recruitment and length of service
12. Training and development centre

13. Others.
(c) Air forccs

1. Location
2. Runway cap;ibility
3. Number and features of the air fleet. Type of weapons
4. Defence svsiçm. Tvve of weavons
5. ~ommuniCations &stems
6. War matériel services
7. Health services
8. Land iransp<irtation services
9. Training and development centres
10. Maintenance services
Il. Quartermaster services
12. Recruitment and length of service
13. Others.

(d) Army forcçs
1.Infantry .

2. Motorized inlantry
3. Airhorne infantry
4. Cavalry
5. Artillcry
6. Armoured
7. Communications
8. Engineers
9. Special forces
10.Reconnaissance troops
11. Health services
12. Transportation services
13. War matériel services ANNEXES 'l'OTHECOUNTER-MEMORIAL 499

14. Maintenance services

15. Quartermaster services
16. Military police
17. Training and developnient centre
18. This document should include precise information on the system of
induction, recruitment: and length of service
19. Others.
(e) Paramilitary forces

(fl Information requirements for airports: Existing airfields

1. Precise location and category
2. Location of instzillations
3. Dimensioiis of the tzike<iff,taxiing, and maintenance runways
4. Facilitics: buildings. maintenance installations, fuel supplies, naviga-
tional aids, communications systems.

(g) Information requircment for tcrminals and ports:
1. Location zindgçneral fciiturcs
2. Entry and access channcls
3. Jctties
4. Capacity of the terminal.

(11)Personnel: From the standpoint of personnel, it is necessary to have the
number of troops in active service, in the reserves, in the securiiy forces,
and in paramilitziry organizations. Moreover, the information ondvisers
should include the number. immigration status. specialization. national-
ity. and lcngth of stay in the country, as well as agreements or contracis.
as the case may be.

(i) In relation to armameni. munitions of al1 kinds should be included. as
well as explosives. ammunition for portable weapons, artilles., bombs
and torpedos. rockets. hand and rifle grenades. depth charges. land and
sea mines. fuses. grenades for mortars and howitzers. etc.
(j) In national and foreign miliiziryinstallations. include military and hospi-
tals' aid siiitions. naval bases. airports and landing strips.

ADDITIONALPRO'I'OCOT LOTHEACT OF CONTADORA FOR
PEACE ANI)CO-OPERATION IN CENTRALAMERICA

The lirldersigned~>letri/~oretrliris,lly empowered by their respective
Governments.

Convinced that il is neccssary tu havc thç çffective CO-operatioii of the
international coinmunity in ordcr to ensure the full force, effectiveness, and
viability of the Act of Contzidora for Peace and Co-operation in Central
America, adopted by the countries of that region,

Have agrecd as follows:
1.To absiain from any aci whereby the objective and purpose of the Ac1

would be defeated.
2. Tu CU-operate with the Central Amcrican States in the terms in which
they so request by common agreement. for attainment of the objectivç and
purpose of the Aci.500 I3ORDBR AND TRANSHORDER ARMED ACTIONS

3. To provide their full supporIO the Commission for Verification and Con-
trol in Security Matters in the performance of its dulies. when su rcqucsied by

the PARTIES.
4. This Protocol shall be opcn to signature by al1States that dcsirc to con-
tribute ta peace and CO-operation in Central America. Such signature shall be
made before any of the Govcrnments depositories of the Act.
5.This Protocol shall enter into force for each signatory Statc on the date
of its signature by eaçh of them.
6. This Protocol sh:ill bc deposited with the Governments of the Statcs that
make up the Contadora Group.
7. This Protocol does no1 allow for any rescrvations.
8.This Protocol shall be recorded with the Secretariat of the United Na-
tions in accordance with Article 102of the Charter of the Unitcd Nations.

Done in the Spanish language in four original copies in the ciiy of
on .1984.

For the Government of Colombia. For the Government of Mexico.

For the Government of Venezuela. For the Government of Panama. ANNEXES TO THE COUNTER-MEMOKIAL

Annex 25

[Spn>iisti rexr no!reprodirce<l/

Tegucigalpa, D.C.. April 18. 1984.

His Excellency Javier Pérezde Cuéllar.
Sccretary-Grnerat of the United Nations.
New York, New York.

Mr. Sccretary-General:

1have the honor to express to Your Excellency' the deep concern of the
Government of Honduras reaardine the new international-level initiative
~ ~
undertaken by the Covernmen'i of ~Earagua; Thc puriose of ihisinitiativc is
to rcmove from the jurisdiction of the group seeking a peaceful settlement.
the Contadora Grouo (Colombia. Mexico. Panama. and Venezuela). the dis- , .
cussion of the politich,~econoniic: social. and security crisis which is affecting
the Central American region ;and which, because of ils complex nature. rc-
ouires a comorehensivc. multilatcral solution.

' Your ~xceilenc~ is aware that this crisis is the rcsult of interna1 conflicts in
certain countries of the area, a lack of respect for human rights, cconomic and
social underdevelo~ment. and. most esoe-ciallv.the arms rice and the inordi-
n;itc build-up of théNicaragua" Arrned'~orcc;. The Govcrnment of Nicaragua
is engaged in the destabilization of neighbouring govcrnmcnls by providing
encouragement, financing, training, and-logisticai and communic~ti~insassic
tance Io groups of insurgents from other Central American countries with a
view to establishing sympathetic governmcnts within those couniries.

It was precisely in order to scck a comprehensive solution Io the Central
American crisis that the Contadora Group proposed direct ncgutiations
between the nations of the region. That proposal was accepted by the Govern-
ment of Honduras. which, from the start, supportcd it iully and participatïd
,icii\cI! in ,11iiicc[ins>~c~nvcn:J lj\the i:~,iii~;lor;i(i~ctup
On April -1.I'JSZ.thr. (;,>\rrnnicnl ,ii 1-I<~iiJur:i\suhiiiitlcd iciihc l'crnia-
iicni i.'ouncil i~iihc Org:ini,aiii~ii i~f,\nicric:in Statcr ;iJr.iit rc><iluti,,iiiiiiiicd

al restoring peace 10 the Central American region. On the rcqucst of the
Contadora Grouo. submitted to the Permanent Council throuah the oerrna-

mcrnber countries would have a chance to achkve oositivi resuiis. ln this rcs-
pcci. Ilis E\c~.llr.ncy Ilcrn:irJo Scpulrrrl;~. Sccrci:iry uf F<ircign Kcl;iiion, <if
\le\ico. iickni~\vlcJ<cJ :ilriprcm c<iiitcrcncc in .Vc\ici, i:iiy on r\liril 13. 1983,

iIi:ithe coricili;it<~na.ititu~1~<IIIli~~iJur:~n ~ilhln ihc OAS rr;i.wh;ii h;id II~~JC
the fraternal effort.of the Contadora Group possible

' See II. Correspondence.Nos. 46.51.71.73 and74502 BORDER AND TRANSBORDER ARMED ACTIONS

Kcicrrinp 1,)thc 1':in;ini.nic~.ting .ifthe ('i,nt,idiir;i <ir<~upniini\tcr>. iliiring
ivhich thir cliori u.4' JcciJeil upiin. III<,5lckic:tn F,~rci$n\Iini~lcr haid:

'.iIr4 N!IJII. II \%.ir~~iliz~~ tldi:~~ihc I~IIII~JI:~IcConccrn nm 10 cnsurc
ih.ii ilicO.\S I1crni.tiicni C'c,uncilw,,ulil noi 1i;iinpcrthe I'orci~n Mini>-
icrs ,ii th: C,int~d<,r;gC;r,>up in ihcir cfii,rt\ 181finLi \olutiiin\ lar ('cnir;il
n r ~ 'l'hi\ \i.i*an urscnt i,<uc in;,wiuch ;i, th^.U:\S I'c.rni;~ncnt
C'i~uii:il\i:.,sch~dul~..l i<icoii>idcr .iJr:iit rr..i~luiii~nwl>niitir.d hy Iltrn-

duras that same Mondav afternoon. Fortunatelv. throush a series of

Permanent Council, and this relieved the pressure so that the issue
could be shifted from the reeional forum~t~ ~~~ Panama forum - that is
to say, Io the Foreign Ministers of the Contadora Croup. At the same

lime, it was elear that it would also be neccsîary to take steps to prevent
duolication in the United Nations svstem of efforts that had iust beeun

lion of the issue. This was the first action taken on'the matter [stated
Minister Sepulveda] and as 1said before, it freed us by making it pos-
sible for us to exercise direct jurisdiction over the problem."

In more than a vear of delicate multilateral nesotiations. the Contadora

in eeneral. keeardless of ideoloeical: oolitical. economic. and Ieeal svstems.~

loving nations for the Contadora Group 10continue itsëfforts to achieve-a last-

ing and stable peace in the region without this process heing hampered by some
country seeking reeourse to other means of peaceful solution.
In accordance with this viewooint, which is shared bv the maioritv of the
Central American couiitries and'by the Contadora CIOU;, the C&eriment of
Honduras wishes Io point out the dangers of discussing the Central American

crisis in various international forumssimultaneouslq.~as the Covernment of
Nicaraeua has reuuested. when direct neeotiations aréalreadv in oroeress. This
viewpZnt has ais; beeri corroborated byYthefact that the ~nked Nacons Secu-
rity Council and Ceneral Assemblv, and the OAS General Assembly, have
sent the Central American issue b&k to the Contadora Croup, Io which they

give their unconditional support.
Once again the Government of Nicaragua is seeking to flout the Conta-
dora negotiation process by attempling Io bring the Central American crisis,
essentially a political issue, under the jurisdiction of the International Court
of Justice. This is detrimental to the negotiations in progress and fails to

recognize the resolutions of the United Nations and the Organization of
American States or the full international endorsement that the Contadora
peace process has so deservedly received.
Needless Io say, the negotiations conducted by the Central American
countries within the Contadora Grouo are exoresslv authorized bv Article 52

01the United ii:ii~i>ii<.li.iric..>iid,\iticlc 231~1th; OAS ('11.irtL.whlch Pr<)-
vide hir rcgis~ii:ilsciilciiicnt <DI Ji~piitcs.
Thc C;<i\<riiiiicni <>r II.>iiJur;~r.witli<~utp;~riicil>siing i,r scc,kine. ii, inl~r- ANNEXESTO TllE COUNTER-MEMORIAL 503

vene in any way in the proceedings initiated by Nicaragua against the United
States of America in the International Court of Justice. views with concern
the possibility that a dccision by the Court could affect the security of the
people and the State of Honduras, which depends to a large extent on the bi-
lateral and multilateral agreements on international co-operation th;it are in
lorce, published. and duly registered with the Office of the Secreiary-General

of the United N;itions, if such :idecision attempted 10limit thcse agreements
indirectly and unilaterally and therehy left my country defensclcss.
The Governnicnt of Honduras also considers that sincï the Contadora
Group unanirnously approvcd the "document of objectives" of September 9,
1983,which encompasscs al1 the problems related to various aspects of the

regional crisis: and sincc ncgotiations are in progress between the five Cen-
tral American countries in thc three working commissions created for this
purpose, thcse negotiations must continue without disrupiion by removal of
the matter from this iurisdiction.
In vic\r.<ifthc rc:isons \i;itcd ;ih,>vc;ind in coi1sidcr:ition of Sic;ir:i~uii's pcii-

lion thal the Court impose prcc;iution:irv nic:isure\ in the prdcccilinss inii1;itr.d
hy \'ic:lr:igu3 ;ig;iinst Ille Unitcd S1:itr.sof ,\mcricI rcspccifull!. rcquest 1Ii:it
Yiwr E.~ccllcncy tr;in\rnit wiih duc urgeii:y IIIthc clcrk ol the Intcrnation;il
(:ourI of J~sticc ihc 1~x1 <IIthis ntiic cuprc\\inl:th< Ilundurÿ~i Gineriinicnt'\
concerns about the impact such measures could have on the ncgotiations in
progress and the international security of the State of Honduras.

1 avail myself of this opportunity 10 renew to Your Excïllency the assu-
rances of my highest c«nsider;ition.504 BORDER AND TRANSBORDER ARMED AUIONS

Annex 26

"THE SITUATION IN CENTRALAMERICA",NOTE BY 'THE SECRETARY-

GENERAL,UNITEDNATIONSDOC. S116041.18 OCTOBER1983

1. Since the Security Council adopted resolution 530 (1983). on 19 May
1983. 1have endeavoured io kccp in contact with the Govcrnments of Costa
Rica. El Salvador. Guatemala, Honduras and Nicaragua, as well as with the
Governments of Colomhin. Mexico. Panama and Vcnczuela. which comorise
~ ~ ~ ~ ~ ~ ~-~~~ . ~ ~ ~ ~ ~ ~ ~
the ~ontadora~rou~, in o;dei to keep informed of the efforts made to ffnd a
ncgotisted political solution to the problems in the Central American reeion
anj of the developments in the area:On two occasions. on 28 June and 13july
1983, 1 rcported orally on thc situation to the memhers of the Council.
2. Within the framework ol the Declaration adoptcd al lsla de Contadora

on 9January 1983', there was an initial phase of official contacts and visits by
the Ministers for Foreign Aff;iirs of the Contadora Group to the countries
directly concerned, on 12and 13April'. As a rcsult of the consultations held. it
was agreed to initiate a ncw phase ofjoint meetings of the Ministers for Foreign
Aflairs of the Group wirh the Ministers for Foreign Affairs of the five Central
Amencan countries. The firsi three meetings were held in Panama City on 20

and 21 Apri12,from 28 to 30 May' and from 28 Io 30 July 1983'.rcspectively.
3. On 17 July 1983, the Prcsidents of Colombia, Mexico. Panama and
Venezuela met in Cancun. Mcxico. The Declaralion issucd on ihat occasion
proposed guidelines for the negotiating process as wcll as spccific commit-
ments the implemen1;ition of which would ensurc pcacc in thc region5.
4. On the basis of the Cancun Declaration, the Ministers for Foreign Af-

(airs of the Contadora Group and 01the fiveCentral Amcrican countries met
again in Panama City. from 7 10 9 September 1983, and adopted a Document
of Obie.~ives6. On 6 October. I received a visit from thc Minister for Foreien
r\il;iir\i~f\Icxiro :~ndihc I'criii:sncni Rcprr.~:iii;iiiic~ of Coli~mhia I';8n;inia
and Vciiczucl:~ 1,)Ille Unitcd N:iiioiis. ivhi, h;tnded nie ihc I>iicumcni. uhiih.
I w;is informcd. h:ril hccn :ippraivcd hy ihc I-lc;idsor SI;itc <ifCusia Ki;;i. El

S;il$,;id<ir.<iuaicni;ila. tlundur;i, alid Ki;:,r;iguii1 Al Ihc rcqueci (II ihc
Coni:idi>r;iGrou[,. the Doiunicnl I\~r:insiiiiti~1%)111cSecuriiv C:CIU~C :I.;in
annexe to this note.
5. On that occasion. the Minister for Foreign Affairs of Mexico pointed oui
that the Document of Objcctivcs is a single consensus text, which sets out the
positions and the concerns 01the Governments directly concerned and the pro-

posais of the Contadora Group. and which contains the principles on which the

. ... ~
*S115982.
'The textsof thecommunicationsfromthe Governments of Nicaragua and Honduras
on thissubiectwerecirculatedIotheSccuritvCouncil asdocuniçnts Sll6OO6 and SI16021506 BORDER AND TRANSBORDER ARMED ACI'IONS

Annex 27

Absrainbig: Australia, Bahamas, Barbados, Chile. Colombia. Fiji. Gua-
temala. Haiti, Ivory Coast. Jamaica. Malawi, Paraguay.
Abseni: Antigua and Barbuda, Belize, Botswana, Burma. Costa Kica.
Dominica, Dominicsn Republic, Equatorial Guinea, Honduras, Iran',
Liberia, Nigeria, Saint Lucia. Saint Vincent, Seychçlles', St. Christopher
and Nevis, Suriname, Swaziland. Vanuatu, Zaire.

38/10. The Sirirarion NICenrral Anrericri: Threars ro Inrernational Secirriry
and Pence lniriarives

Date: II November 1983 Meeting: 53
Adopted without a votc Drnft: Ai38IL.I31Kev.1

The Gerieral Asser>tbly,

Hec<illingSecurity Council resolution 530 (1983) of 19 May 1983 in which
the Council encouraged the efforts of the Contadora Group and appealed
urgently to al1interested States inand outside the region to CO-operatc fully
with the Group, through a frank and constructive dialogue, so as 10 resolve
thcir diffcrences,
Henffirniing the purposes and principles of the Charter of the United Na-
tions relating 10the duty of al1States Io refrain from the threat or use of force
against the sovereignty. territorial integrity or political independence of any
State,

Also reaffirmitig the inalienable right of al1peoples io decide on their own
form of governnient and to choose thcir own economic, politicdl and social
systcm free from al1foreign intervention. coercion or limitation.
Considering that the interna1 conflicts in the countries of Central America
stem from the economic, political and social conditions obtaining in each of
those countries and that they should not, thcrefore. be placed in the context
of East-West confrontation,

Deeo.v concerr~ed at the worsenine of tensions and confiicts in Central
Aittcric,~ai14the incr~;,hcin,~II~IJ~~t~~crfcrcnc2cnd ;ICI;of ,igp,r<s;lon,I~:IIII\~
thc couniric.r iiI ihr.-rcçi.in. uhich end.inger intcrniiti<~nalpc.1~~:lnJ sccurily.
Mindfrrl of the necessitv of oromotine th- achievement of oeace on a
sound Lis, which would hake'possible a genuine democratic brocess, re-
spect for human rights, and economic and social development.
N<,rin~with deep concern that in recent wccks armed incidents, horder
clashes, acts of terrorism and sabotage, traffic in arms and destabilizing actions

in and against countries of the region have increased in number and intensity.

'Lateradvised thrsecreiariatihad intendrd tovotein lavour. ANNEXES TC1THE COUNTER-MEMORIAL 507

Nofirig wifh greaf concern the military presence of countries from outside
the rcgion. the carrying «ut of overt and covcrt actions, and thc usc of neigh-
bouring territories tu engage in destabilizing actions, which have servcd to

hcighten tensions in the rcgion.
Deeply concerned at the prolongation of the armed conflict in countries of
Central America, which has becn aggravated by increasing foreign inter-
vcntion,
Re(iri11gin mind the progress achieved in the meetings that the Ministers
for Forcien Affairs of the Contadora Crou~ have held with the Foreien Min-
isters of Costa Rica, El Salvador. Cuate&ala, Honduras and ~ica&ua in

identifying issues of concern and pro~.sing ap.ro..iat. procedures for the
consideraiion of thosc issues.
Rec(rl1ingthe Cancun Declaration on Pcace in Central Anierica issued by
the Presidents of Colombia, Mcxico. Panama and Venezuela on 17July 1983'.
which contains an appeal for political commitments on the part of countries
siiuatçd in and outside the rcgion with the aim of achieving lasting peace in
the area.

Reiiring in rninil thç Cancun Declaration and the endorscment by the
Statcs of Central America of a Document of Objectives, which providcs a
basis for an agreement on the negotiations. that should be initiated at the ear-
lies! possible date with the aim of drawing up agreements and adopting the
neccssary procedures for formalizing the commitments and cnsuring appro-
priate systems of control and verificaiion,
Appreciaring the broad international support expressed for the efforts of
the Contadora Group to sccure a peaceful and ncgotiated settlcment of the
conflicts affecting the rcgion,

1.Reiiffirms the right of al1the countries of the region to live in peace and
to decidc their own future, free from al1outsidc interference or intervention.
whatcver pretext may be adduced or whaicifer the circumstances in which
thev mav be committed:
5. ~fjrms that respect for the sovereignty and independence of al1States
of the rcgion is essçntial lo eiisure the security and peacçful coexistence of
the central American States;
3. C<,nrieninsthe acts of agj:ression against the sovereignty, independence
and territorial integrity of the States of theregion, which have caused losses
in human life and irreparable damage tu thcir economies, thçreby preventing
them from meeting the cconomic and social development needs of thcir
peoples: especially serious in this context arc:

(a) The attacks launched ïrom outside Nicaragua against that country's
strategic installations. such as airports and seaports, energy storage facilities
and other targets whose destriiction seriously affçcts the country's economic
lifc and endangers denscly populated arcas;
(h) The continue* losscs in hurnan life in El Salvador and Honduras, the
destruction of important public works and losses in production;
(c) The increase in the number of refugcçs in several countries of the
rcgion:

4. Urges the States of thc region and othcr States ta desist fromor to refrain

'A/R8/303-Si15877A , nnex508 BORDER AND TRANSB0RI)ERARMEDACTIOXS

from initiating, miliiary operations intendcd to exert political pressure, which
aeeravate the situation in the reeion and hamoer the efforts to oromote neeo-
tgïions that the Contzidora croup is undertaking with the ag;eement of the

Governments of Central America;
5. Nores witl~suristi~driothat the countries of the reeion have aereed to
take measures leading (O the establishment and. where appropriate,the im-
provement of democralic. representaiive and pluralistic systems which will
guaraniee effective popular participation in decision-making and ensure the
free access of various currents of opinion to honest and periodic electoral
proccssçs based on thri full obsçrvancï of civil rights, emphasizing that the
strcngthening of democratic institutions is closely linked to evolution and
advances achieved in the sphere of economic development and social justicc;
6. Expressesirsfirnlrsr siipportfor the Contadora Group and urges it to
persevere in ils efforts, which enjoy the effective support of the international
community and ihe forihright co-operation of the interesied countries in or
outside the region;

7. Welcomeswirh satisfacrion the Cancun Declaration of ihe Presidents of
Colombia. Mexico. Panama and Venezuela and the Docunient of Obiectives
endorsed by the Goverriments of Costa Rica. El Salvador, Guatemala, Hon-
duras and Nicara~ua, which contains the basis for the star1 of negotiations to
ensure harmonioüs coexistence in Central America:
8. Reqiiesrsthe Secretary-General. in pursuance of Security Council reso-
lution 530 (1983). to keep the Council regularly informed of the development
of the situation and of the implementation of ihat resolution:
Y.Reoiresrsthe ~ecretarv-Géneral to submit a reoort to ihc Gencral Assem-
bly at il; thirty-ninth sessian on the implementation of the present resolution;
10. Decides to keep under review the situation in Central America, threats
Io security which may vccur in the rcgion and the progress of peace initia-
tives. ANNEXES 'TOTHE COUNTER-MEMOKIAL 509

Annex 28

UNITEDNATIONSSECURITYCOUNCILRESOLUTION530 (1983)
ADOPTED19MAY 1983

TlreSec~,riryCouncil,
Iliivbrg lrerrrrl the statenieni ol the Foreign Minister of the Republic of

Nicaragua.
Hcivirrgolso henrd the staiements of various States Members of the United
Nations in the course of the dehaie.
Deep- concrrned, on the one hand. at the situaiion prcvailing on and inside
the northcrn border of Nicaragua and. on the othcr hand. at the consequent

danger of a militas. confrontation bctween Honduras and Nicaragua, which
could furthcr aggravate the existing crisis situation in Central America.
Recullirig al1 the relçvant principles of the Charter »l the United Nations,
particularly the obligation of States to settle thcir disputes exclusively by
peacelul means. no1 to resort lo the threat or use of lorce and to respect ihc
self-determinaiion of peoples and the sovereign independence of al1States.

Noring the widespread desire expressed by the Siatcs concerned to achievc
solutions io the differences between them.
Co~,rnre~ldin~the ao..al ol the Contadora erouo of countries. Colombia.
Mexico, pana& and Venezucl;~,in ils 12 ~a; 1983 communiqué (S115762)
that thc dclibcrations of thc Council should strcnrthen the principleb of sclf-
deterniinaiion and non-interfercncc in the affairsol other ~tates.'the oblic;t-
tion no1 to allow the territory of a State to bc used lor commiiting zici<ol
aggression against other States. the peaceful seitlemcnt of disputes and the
~rohibition of the threat or usc ol force to resolve conflict.

Cotr.sideringthe broad support expressed for the elforts of the Contador;~
Group to achieve solutions to the problems that affect Central Aiiierican
couniries and to secure a stable and iasting peace in the region.

1. Re[rffirnis the right of Nicaragua and of al1 the other countries ol the
area to live in peacc and security, frçe from outside intcrlerencçs;
2. C(~??i??rentse efforts of tlic Contadora Group and urges the pursuii iif
those efforts:
3. Appe[ils urgently 10 the iriierested States 10 co-operate fully with the
Contadora Group. through a frank and construciive dialogue. so as to resolve
their diflerences:
4. Urges the Contadora Group to spare no elfort to find solutions to the
prohlems of the region and to kecp the Security Council inlormed of the results
of thesc cflnrts;
5. Rerlrrcststhe Secretary-Gcncral to keep the Scçurity Council informcd
of the dcvelopment of the situation and of the impleinentation of the prcscnt
resolution.