The American Treaty on Pacific Settlement (Pact of Bogotá) and the Jurisdiction of the International Court of Justice

René Figueredo

Vol. 43 Associate Editor

I. Introduction In 1948, at the Ninth International Conference of American States, held in Bogotá, Colombia, the American Treaty on Pacific Settlement (hereinafter “the Pact of Bogotá” or “the Pact”) was adopted and signed.[1] The Pact of Bogotá represents the consolidation of a framework of treaties adopted within the Inter-American system since 1923 that established several peaceful settlement mechanisms.[2] This blog post aims at, first, examining the general obligation of the peaceful settlement of disputes arising among state parties to the Pact and, second, analyzing the judicial system provided in the Pact, particularly the jurisdiction granted in article XXXI to the International Court of Justice (hereinafter “the ICJ” or “the World Court”) of the Pact and its relationship with the optional clause declaration under the Statute of the ICJ. II. The General Obligation of the Peaceful Settlement of Disputes in the Pact of Bogotá The principle of peaceful settlement of international disputes is encompassed in articles I, II and III of the Pact. Pursuant to article I, state parties to the Pact undertake to refrain from the threat or the use of force, or from any other means of coercion for the settlement of their disputes. Under article II, they recognize the obligation to settle international controversies by regional procedures before referring them to the United Nations Security Council. Moreover, article III reflects the principle of free choice of dispute settlement means, providing that the means listed in the Pact do not have an order of preference and that state parties may choose the one they consider most appropriate in each case.[3] The general obligation of peaceful settlement of disputes, however, must be construed within the limitations provided by the Pact itself. The Pact compels state parties to settle all disputes which may arise between them by the procedures set forth therein, or such special procedures that will permit them to arrive at a solution, except: (1) matters which, by their nature, are within the domestic jurisdiction of the state; (2) matters “already settled by the arrangement between the parties, or by arbitral award or by decision of an international court”; (3) matters that are “governed by agreements or treaties in force on the date of the conclusion” of the Pact; and (4) matters on the diplomatic protection of nationals, when the said nationals have had available the means to place their case before competent domestic court of the respective state.[4] The provisions of the Pact are also subject to article LV, which enables state parties to make reservations thereto and applies to all signatory states on the basis of reciprocity.[5] III. Recourse to the ICJ in Article XXXI of the Pact of Bogotá Recourse to the ICJ (“judicial procedure”) is one of the means of dispute settlement established in the Pact.[6] This is found in article XXXI of the Pact.[7] This provision is a sort of contractual expression of article 36(2) of the Statute of the ICJ and places the Pact under the provision of article 36(1) of the Statute of the ICJ, which refers to the treaties and conventions in force by which states confer jurisdiction on the World Court.[8] The applicability of article XXXI was considered by the International Court of Justice for the first time in the Border and Transborder Armed Action (Nicaragua v. Honduras) case. In 1986, Nicaragua initiated proceedings against Honduras for certain military activities directed against Nicaragua by the Contras operating from its territory. Despite the case was discontinued, the Court’s ruling on its jurisdiction and admissibility of Nicaragua’s application was the foundation stone in the development of its jurisprudence in future disputes arising from the Pact, as it shed light on the relationship between article XXXI and the optional clause unilateral declarations deposited under article 36(2) of the Statute of the ICJ. In the case, Honduras made two contentions with regard to article XXXI. First, it argued that article XXXI was subject to the unilateral declarations of recognition of the jurisdiction of the ICJ, as provided for by article 36(2) of the Statute of the ICJ, and to any reservations made thereto. Second, it maintained that any modification or withdrawal of a declaration regarded valid under article 36(2) of the Statute of the ICJ was equally effective under article XXXI of the Pact.[9] With respect to the first argument made by Honduras, the Court held that “[the interpretation that article XXXI must be supplemented by a declaration] is incompatible with the actual terms of the article. . . . article XXXI does not subject that recognition to the making of a new declaration . . . [i]t is drafted in the present indicative tense, and thus of itself constitutes acceptance of the Court’s jurisdiction.”[10] Regarding the second contention made by Honduras, the ICJ determined that “article XXXI nowhere envisages that the undertaking entered into by the parties to the Pact might be amended by means of a unilateral declaration made . . . under the Statute, and the reference to article 36, paragraph 2, of the Statute is insufficient in itself to have that effect.”[11] Furthermore, the ICJ ruled that “ . . . [t]he commitment in article XXXI applies ratione materiae to the disputes enumerated in that text; it related ratione personae to the American States parties to the Pact; it remains valid ratione temporis for as long as that instrument itself remains in force between those States”[12] and that “[several provisions of the Pact read together] indicate that the commitment in article XXXI can only be limited by means of reservations to the Pact itself.[13] Additionally, the ICJ based its reasoning on the travaux préparatoires and the subsequent practice of the state parties to the Pact since 1948.[14] In its conclusion on this question, the Court held that article XXXI of the Pact is independent of the optional declarations of acceptance of compulsory jurisdiction made under article 36(2) of the Statute of the ICJ.[15] By making a distinction between section 1 and 2 of article 36 of the ICJ Statute, the Court was right to assert that article XXXI of the Pact does not constitute a strict application of article 36(2) of the ICJ Statute. Instead, the compulsory jurisdiction under article XXXI is founded upon article 36(1). The declaration made under the optional clause is deposited with the UN Secretary-General, and is not a multilaterally contracted obligation. Moreover, if article XXXI were to be construed as an application of article 36(2) of the ICJ Statute, interpretative implications would arise with regard to the expression “. . . in relation to any other American State”. In fact, if article XXXI were to be considered an optional clause declaration, recognizing ipso facto the compulsory jurisdiction of the Court “. . . in relation to any other American State”, this would imply that the acceptance of the jurisdiction is not subject to that other American State having accepted the same obligation, nor is it required to have ratified the Pact.[16] For this reason, this issue disappears if one takes into account that the acceptance of the Court’s jurisdiction in article XXXI is justified under Article 36(1) of the ICJ Statute, and not under Article 36(2). Thus, a state cannot invoke a treaty or convention in force, as a basis for the jurisdiction of the Court, it is not a party to such a treaty.[17] IV. Conclusion The Pact of Bogotá is a regional mechanism of dispute settlement that builds a bridge with the World Court, the universal judicial body of the United Nations, by conferring jurisdiction on the Court in disputes arising among American on a conventional basis. For the first time, the ICJ correctly interpreted the scope of article XXXI of the Pact in the Border and Transborder Armed Action case, concluding that it is a conventional obligation, independent to the unilateral declarations made under the optional clause of the Statute of the Court. Despite having faced criticism in the past,[18] the Pact has stood the test of time. In particular, judicial settlement has played an important role in international disputes among Latin American states. Since the Border and Transborder Armed Action case, article XXXI has been invoked in several disputes as the basis of the Court’s jurisdiction in the past twenty years.[19] Overall, the Pact, distinctly in article XXXI, reflects the commitment of American states to the overarching obligation of settling their international disputes through peaceful means, particularly the judicial settlement of disputes. As the Court has evinced, the purpose of the American states in drafting the Pact was to reinforce their mutual commitments with regard to judicial settlement.[20] At present, more than seventy years after its adoption, the Pact has been considered a corpus juris of international law in the Americas.[21]

[1] American Treaty on Pacific Settlement (Pact of Bogotá), Apr. 30, 1948, O.A.S.T.S. Nos. 17 & 61, 30 U.N.T.S. 55. [2] Id. art. LVIII (noting that the Pact superseded the following treaties: the Treaty to Avoid or Prevent Conflicts between the American States (also known as the “Gondra Treaty”, 1923); the General Convention of Inter-American Conciliation (1929); General Treaty of Inter-American Arbitration and Additional Protocol of Progressive Arbitration (1929); the Additional Protocol to the General Convention of Inter-American Conciliation (1933); the Anti-War Treaty of Non-Aggression and Conciliation (also known as the “Lamas Saavedra Treaty”, 1933); the Convention to Coordinate, Extend and Assure the Fulfilment of the Existing Treaties between the American States (1936); the Inter-American Treaty on Good Offices and Mediation (1936); and the Treaty on the Prevention of Controversies (1936)). [3] Id. art. I (providing the general obligation to refrain from the threat or the use of force, or from any other means of coercion for the settlement of their controversies, and to have recourse at all times to pacific procedures); Id. art. II (recognizing the obligation to settle international controversies by regional procedures before referring them to the Security Council of the United Nations); Id. art. III (providing the freedom of choice of any of the means contained in the Pact to settle an international dispute arising among State Parties). [4] Id. arts. V–VII. See also U.N. Charter, art. 33, ¶ 1 (providing the freedom of the choice of means for the settlement of disputes). [5] For the status of the Pact of Bogotá, which includes the history of reservations made thereto (as well as their withdrawal), see A-42: American Treaty on Pacific Settlement “Pact of Bogotá”, http://www.oas.org/juridico/english/sigs/a-42.html (last visited Oct. 31, 2021). [6] The other means of dispute settlement are good offices, mediation, investigation, conciliation, and arbitration. See Pact of Bogotá, supra note 1, chs. II–IV. [7] See Pact of Bogotá, supra note 1, art. XXXI (“In conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice, the High Contracting Parties declare that they recognize, in relation to any other American State, the jurisdiction of the Court as compulsory ipso facto, without the necessity of any special agreement so long as the present Treaty is in force, in all disputes of a juridical nature that arise among them concerning:  a) The interpretation of a treaty;  b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation).” [8] María Teresa Infante Caffi, The Pact of Bogota: Cases and Practice, 10 Anuario Colombiano de Derecho Internacional [A.C.D.I.] 85, 96 (2017) (Colom.). [9] Border and Transborder Armed Actions (Nicar. v. Hond.), Judgment, 1988 I.C.J. Rep. 69, ¶ 31 (Dec. 20). [10] Id. ¶ 32. [11] Id. ¶ 34. [12] Id. [13] Id. ¶ 36. [14] Id. ¶¶ 37, 40. [15] Id. ¶ 41. [16] See Eduardo Jiménez de Aréchaga, Tentativas de reforma al Pacto de Bogotá, in Anuario Jurídico Interamericano 1986 (Organization of American States ed., 1987), at 3–12. [17] Id. at 4. See also Eduardo Jiménez de Aréchaga, The Compulsory Jurisdiction of the International Court of Justice under the Pact of Bogota and the Optional Clause,” in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Yoram Dinstein et al eds., 1989), at 355–60; Eduardo Valencia-Ospina, The Role of the International Court of Justice in the Pact of Bogotá, in Liber Amicorum ‘In Memoriam’ of Judge José María Ruda (Calixto A. Armas Barea et al eds., 2000), at 291–329. This is reinforced by the fact that article XXXI provides for judicial settlement “. . . so long as the present Treaty is in force . . . ”, therefore conditioning its validity to ratification by state parties to the Pact. Additionally, this must be read in connection with article LIII, which provides that “[t]his Treaty shall come into effect between the High Contracting Parties in the order in which they deposit their respective ratifications,” and article LV, which establishes that “[s]hould any of the High Contracting Parties make reservations concerning the present Treaty, such reservations shall, with respect to the state that makes them, apply to all signatory states on the basis of reciprocity.” Hence, it would be absurd to apply the Pact’s provisions to states that are not parties thereto. [18] Infante Caffi, supra note 8, at 109–10. [19] See Eduardo Valencia-Ospina & Justina Uriburu, Bogotá Pact (1948), in Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum et al. eds., 2019) (noting that art. XXXI was invoked in the following cases: Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Colombia); Dispute regarding Navigational and Related Rights Case (Costa Rica v. Nicaragua); Maritime Dispute (Peru v. Chile), Aerial Herbicide Spraying (Ecuador v. Colombia) (discontinued); Certain Questions concerning Diplomatic Relations (Honduras v. Brazil) (discontinued); Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) (and Construction of a Road in Costa Rica along the San Juan River [Nicaragua v. Costa Rica]); Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) (and Land Boundary in the Northern Part of Isla Portillos [Costa Rica v. Nicaragua]), and Dispute over the Status and Use of the Waters of the Silala (Chile v. Bolivia)). [20] See Border and Transborder Armed Actions case, supra note 9, ¶ 46. [21] Infante Caffi, supra note 8, at 112.