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COUNTER-MEMORIAL of NICARAGUA (JURISDICTION and ADMISSIBILITY) Volume 1

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COUNTER-MEMORIAL of NICARAGUA (JURISDICTION and ADMISSIBILITY) Volume 1 COUNTER-MEMORIAL OF NICARAGUA (JURISDICTION AND ADMISSIBILITY) Volume 1 INTRODUCTION I Uic.ir.ipua iiiiti:~i~iIth13 ~irocccJiiietiGi1n.t lI<iriJur~ih! filing 11, ,\ppli. c3tioii \iith lhr, Ctiuri oii 2h July I'JYIi. Tlic ,\pl)lic:iii~>n,cl, fairtli iitars.<'c i'i<,l.i- ti.>ns oii the miri .BIIl<indurlis 01 11, Icc.il ~~hlicliii~~iisunilcr thc iïi.irlcri ul ihc United ~atiUnsand 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~facilitiesin~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 thé mer- 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 ~artiesand 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$3l ~'lf~ct.l'.~ri Il ,413~dci~~u~~slratc~ th,ii: h i\it?r \r\in yr:lr. 01 iiii~uc:~~~iulJipl<ini;riic ciii>ri, 1,) r~,\<ili.cihc i\\iicï raiscd iii the ,\~pli.,iiion. it i\ iil.iin th.ii ihcw isc~r.>h.1t.c mit h2c.n ~:ap:ihlc$if resolution by dcrect negotiatibn. It is equally plain that, under the-~actof 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 11 of the Pact of Bo~otA.. and therefore do not ~recludeNicaraeua 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 decisions~ ~ ~~ of the Court.~~~~ and that the claims oresentcd. are leeal claims 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 1 of 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 factual context of the dispute between Nicaragua and Honduras, including, as related in Section 1 of this chaoter. "the cause of the conflict in Central America". ~heincompleteness i;f this 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 10,000 of 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~ricsiighrinr: 4,:xnit ihcm. Thc (,>iitr;i>ciimlirisr. Icirnicr inenil>cr, OI ~hcSC~I~~,III.I S;~II,DII.II Gu:$rtl. d13>1Jcntripht-\\ing i,,riii~~~ S~IIJIIIISI~I~..I~Jtlic hlijk~io InJi.in iiiiiiorit\,: c.ich gii tltc~sclorccs <I~L.- rates indep&dently. The Contras operate fkrn buses in Honduras and Costa Rico and receive political and material support from 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 Acriviries in and against Niciiragua (Nicaragua v. U~iitedStates of America) Merits, Judgment, I.C.J. Reports 1986, 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 - al1 located and maintained on Honduran territory.
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