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24Sep15
Judgment on the preliminary objection raised by Chile in the case concerning the obligation to negotiate access to the Pacific Ocean (Bolivia v. Chile)
Back to top24 September 2015
Judgment
Obligation to Negotiate Access to the Pacific Ocean
(Bolivia v. Chile)Preliminary Objection
TABLE OF CONTENTS
INTERNATIONAL COURT OF JUSTICE
YEAR 2015
24 September 2015
OBLIGATION TO NEGOTIATE
ACCESS TO THE PACIFIC OCEAN(BOLIVIA v. CHILE)
PRELIMINARY OBJECTION
Geography – Historical background – Bolivia's claims – Jurisdiction based on Article XXXI of the Pact of Bogotá – Contention of Chile that, under Article VI of the Pact, the Court lacks jurisdiction.
Subject-matter of dispute to be determined by the Court – Differing characterization of the dispute by the Parties – Chile's characterization not accepted – Question whether Bolivia has a right to sovereign access to the sea not before the Court – No need for pronouncement on legal status of 1904 Peace Treaty – Subject-matter of dispute twofold – Whether Chile obligated to negotiate in good faith Bolivia's sovereign access to the sea – Whether Chile has breached any such obligation – Use in Judgment of phrases "sovereign access" and "to negotiate sovereign access" without incidence on existence, nature or content of any alleged obligation.
Determination whether matters in dispute were "settled" or "governed" by 1904 Peace Treaty – Jurisdictional regime of Pact of Bogotá – Article VI of the Pact – Relevant provisions of 1904 Peace Treaty – Chile's alleged obligation to negotiate not addressed in 1904 Peace Treaty – The matters in dispute are matters neither "settled" nor "governed", within meaning of Article VI of the Pact, by 1904 Peace Treaty – No need to examine, for purposes of the case, whether there exists a distinction between legal effect of terms "settled" and "governed" – No need to examine agreements, diplomatic practice and declarations invoked by Bolivia.
Bolivia's alternative argument that Chile's objection does not possess exclusively preliminary character – Bolivia's alternative argument moot – For the Court to determine whether an objection lacks an exclusively preliminary character – The Court not precluded from ruling on Chile's objection at this stage.
Chile's preliminary objection dismissed – The Court has jurisdiction to entertain Bolivia's Application.
JUDGMENT
Present: President Abraham ; Vice-President Yusuf ; Judges Owada, Tomka, Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Gevorgian ; Judges ad hoc Daudet, Arbour ; Registrar Couvreur.
In the case concerning the obligation to negotiate access to the Pacific Ocean,
between
the Plurinational State of Bolivia,
represented by
H.E. Mr. Eduardo Rodríguez Veltzé, former President of Bolivia, former President of the Bolivian Supreme Court of Justice, former Dean of the Law School from the Catholic University of Bolivia, La Paz, Ambassador Extraordinary and Plenipotentiary of the Plurinational State of Bolivia to the Kingdom of the Netherlands,
as Agent;
H.E. Mr. David Choquehuanca Céspedes, Minister for Foreign Affairs of the Plurinational State of Bolivia,
as National Authority;
Mr. Mathias Forteau, Professor at the University of Paris Ouest, Nanterre-La Défense, Member of the International Law Commission,
Mr. Antonio Remiro Brotóns, Professor of International Law, Universidad Autónoma de Madrid, member of the Institut de droit international,
Ms Monique Chemillier-Gendreau, Professor Emeritus of Public Law and Political Science, University of Paris Diderot,
Mr. Payam Akhavan, L.L.M., S.J.D. (Harvard), Professor of International Law, McGill University, Montreal, member of the State Bar of New York and of the Law Society of Upper Canada,
Ms Amy Sander, member of the English Bar,
as Counsel and Advocates;
Mr. Hector Arce, Attorney-General of the Plurinational State of Bolivia, Professor of Constitutional Law, Universidad Mayor de San Andrés, La Paz,
Mr. Reymi Ferreira, Minister of Defence of the Plurinational State of Bolivia,
H.E. Mr. Juan Carlos Alurralde, Vice-Minister for Foreign Affairs of the Plurinational State of Bolivia,
Mr. Emerson Calderón, Secretary-General of the Strategic Maritime Vindication Office (DIREMAR), Professor of Public International Law, Universidad Mayor de San Andrés, La Paz,
H.E. Mr. Sacha Llorenty, Permanent Representative of Bolivia to the United Nations in New York,
H.E. Ms Nardy Suxo, Permanent Representative of Bolivia to the United Nations Office in Geneva,
Mr. Rubén Saavedra, Permanent Representative of Bolivia to the Union of South American Nations (UNASUR) in Quito,
as Advisers;
Mr. Carlos Mesa Gisbert, former President and Vice-President of Bolivia,
as Special Envoy and Spokesman;
Mr. José Villarroel, DIREMAR, La Paz,
Mr. Osvaldo Torrico, DIREMAR, La Paz,
Mr. Farit Rojas Tudela, Embassy of Bolivia in the Kingdom of the Netherlands,
Mr. Luis Rojas Martínez, Embassy of Bolivia in the Kingdom of the Netherlands,
Mr. Franz Zubieta, State Attorney's Office, La Paz,
as Technical Advisers;
Ms Gimena González,
Ms Kathleen McFarland,
as Assistant Counsel,
and
the Republic of Chile, represented by
H.E. Mr. Felipe Bulnes Serrano, Former Minister of Justice and Education of the Republic of Chile, Former Ambassador of Chile to the United States of America, Professor of Civil Law, Pontificia Universidad Católica de Chile,
as Agent;
H.E. Mr. Heraldo Muñoz Valenzuela, Minister for Foreign Affairs of Chile,
as National Authority;
Mr. Claudio Grossman, Dean and R. Geraldson Professor of International Law, American University, Washington College of Law,
H.E. Ms Maria Teresa Infante Caffi, Ambassador of Chile to the Kingdom of the Netherlands, member of the Institut de droit international,
as Co-Agents;
Sir Daniel Bethlehem, Q.C., Barrister, Bar of England and Wales, 20 Essex Street Chambers,
Mr. Pierre-Marie Dupuy, Professor at the Graduate Institute of International Studies and Development, Geneva, and University of Paris II (Pan-theon-Assas), associate member of the Institut de droit international,
Mr. Ben Juratowitch, Solicitor admitted in Queensland and in England and Wales, Freshfields Bruckhaus Deringer,
Mr. Harold Hongju Koh, Sterling Professor of International Law, Yale Law School, member of the Bars of New York and the District of Columbia,
Ms Mónica Pinto, Professor and Dean of the Law School of the Universidad de Buenos Aires, Argentina,
Mr. Samuel Wordsworth, Q.C., member of the English Bar, member of the Paris Bar, Essex Court Chambers,
as Counsel and Advocates;
H.E. Mr. Alberto van Klaveren Stork, Former Vice-Minister for Foreign Affairs of Chile, Professor of International Relations, Universidad de Chile,
Ms Ximena Fuentes Torrijo, Professor of Public International Law, Universidad Adolfo Ibáñez and Universidad de Chile,
Mr. Andrés Jana Linetzky, Professor, Universidad de Chile,
Ms Nienke Grossman, Professor, University of Baltimore, Maryland, member of the Bars of Virginia and the District of Columbia,
Ms Kate Parlett, Solicitor admitted in Queensland and in England and Wales,
Ms Alexandra van der Meulen, avocat à la Cour (Paris) and member of the Bar of the State of New York,
Ms Callista Harris, Solicitor admitted in New South Wales,
Ms Mariana Durney, Legal Officer, Ministry of Foreign Affairs of Chile,
Ms María Alicia Rios, Ministry of Foreign Affairs of Chile,
Mr. Juan Enrique Loyer, Third Secretary, Embassy of Chile in the Kingdom of the Netherlands,
as Advisers;
Mr. Coalter G. Lathrop, Sovereign Geographic, member of the North Carolina Bar,
as Technical Adviser,
The Court,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 24 April 2013, the Government of the Plurinational State of Bolivia (hereinafter "Bolivia") filed in the Registry of the Court an Application instituting proceedings against the Republic of Chile (hereinafter "Chile") with regard to a dispute "relating to Chile's obligation to negotiate in good faith and effectively with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean".
In its Application, Bolivia seeks to found the jurisdiction of the Court on Article XXXI of the American Treaty on Pacific Settlement signed on 30 April 1948, officially designated, according to Article LX thereof, as the "Pact of Bogotá" (and hereinafter referred to as such).
2. In accordance with Article 40, paragraph 2, of the Statute of the Court, the Registrar immediately communicated the Application to the Government of Chile ; and, under paragraph 3 of that Article, all other States entitled to appear before the Court were notified of the Application.
3. Since the Court included upon the Bench no judge of the nationality of either of the Parties, each Party proceeded to exercise the right conferred upon it by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case. Bolivia chose Mr. Yves Daudet and Chile Ms Louise Arbour.
4. By an Order of 18 June 2013, the Court fixed 17 April 2014 as the time-limit for the filing of the Memorial of Bolivia and 18 February 2015 for the filing of the Counter-Memorial of Chile. Bolivia filed its Memorial within the time-limit so prescribed.
5. Referring to Article 53, paragraph 1, of the Rules of Court, the Government of Peru and the Government of Colombia respectively asked to be furnished with copies of the pleadings and documents annexed in the case. Having ascertained the views of the Parties pursuant to that same provision, the President of the Court decided to grant those requests. The Registrar duly communicated these decisions to the said Governments and to the Parties.
6. On 15 July 2014, within the time-limit set by Article 79, paragraph 1, of the Rules of Court, Chile raised a preliminary objection to the jurisdiction of the Court. Consequently, by an Order of 15 July 2014, the President, noting that by virtue of Article 79, paragraph 5, of the Rules of Court the proceedings on the merits were suspended, and taking account of Practice Direction V, fixed 14 November 2014 as the time-limit for the presentation by Bolivia of a written statement of its observations and submissions on the preliminary objection raised by Chile. Bolivia filed such a statement within the time-limit so prescribed, and the case thus became ready for hearing in respect of the preliminary objection.
7. Pursuant to the instructions of the Court under Article 43 of the Rules of Court, the Registrar addressed to the States parties to the Pact of Bogotá the notifications provided for in Article 63, paragraph 1, of the Statute of the Court. In accordance with the provisions of Article 69, paragraph 3, of the Rules of Court, the Registrar moreover addressed to the Organization of American States (hereinafter the "OAS") the notification provided for in Article 34, paragraph 3, of the Statute of the Court. As provided for in Article 69, paragraph 3, of the Rules of Court, the Registrar transmitted the written pleadings to the OAS and asked that organization whether or not it intended to furnish observations in writing within the meaning of that Article. The Registrar further stated that, in view of the fact that the current phase of the proceedings related to the question of jurisdiction, any written observations should be limited to the construction of the provisions of the Pact of Bogotá concerning that question. The Secretary-General of the OAS informed the Court that that organization did not intend to submit any such observations.
8. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court, after ascertaining the views of the Parties, decided that copies of the preliminary objection and the written observations on that objection would be made accessible to the public on the opening of the oral proceedings.
9. Public hearings on the preliminary objection raised by Chile were held from Monday 4 to Friday 8 May 2015, at which the Court heard the oral arguments and replies of:
For Chile: H.E. Mr. Felipe Bulnes,
Ms Mónica Pinto,
Sir Daniel Bethlehem,
Mr. Samuel Wordsworth,
Mr. Pierre-Marie Dupuy,
Mr. Harold Hongju Koh.For Bolivia: H.E. Mr. Eduardo Rodriguez Veltzé,
Mr. Mathias Forteau,
Ms Monique Chemillier-Gendreau,
Mr. Antonio Remiro Brotóns,
Mr. Payam Akhavan.10. At the hearings, Members of the Court put questions to the Parties, to which replies were given orally and in writing, within the time-limit fixed by the President in accordance with Article 61, paragraph 4, of the Rules of Court. Pursuant to Article 72 of the Rules of Court, each of the Parties submitted comments on the written replies provided by the other.
*
11. In the Application, the following claim was made by Bolivia:
"For the above reasons Bolivia respectfully requests the Court to adjudge and declare that:
(a) Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean;
(b) Chile has breached the said obligation;
(c) Chile must perform the said obligation in good faith, promptly, formally, within a reasonable time and effectively, to grant Bolivia a fully sovereign access to the Pacific Ocean."
12. In the Memorial, the following submissions were presented on behalf of the Government of Bolivia:
"For the reasons given in this Memorial, and reserving the right to supplement, amplify or amend the present submissions, Bolivia requests the Court to adjudge and declare that:
(a) Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean;
(b) Chile has breached the said obligation ; and
(c) Chile must perform the said obligation in good faith, promptly, formally, within a reasonable time and effectively, to grant Bolivia a fully sovereign access to the Pacific Ocean."
13. In the preliminary objection, the following submissions were presented on behalf of the Government of Chile:
"For the reasons explained in the preceding chapters, Chile respectfully requests the Court to adjudge and declare that:
The claim brought by Bolivia against Chile is not within the jurisdiction of the Court."
In the written statement of its observations and submissions on the preliminary objection, the following submissions were presented on behalf of the Government of Bolivia:
"Accordingly, Bolivia respectfully asks the Court:
(a) To reject the objection to its jurisdiction submitted by Chile;
(b) To adjudge and declare that the claim brought by Bolivia enters within its jurisdiction."
14. At the oral proceedings on the preliminary objection, the following submissions were presented by the Parties:
On behalf of the Government of Chile,
at the hearing of 7 May 2015:
"The Republic of Chile respectfully requests the Court to adjudge and declare that the claim brought by Bolivia against Chile is not within the jurisdiction of the Court."
On behalf of the Government of Bolivia,
at the hearing of 8 May 2015:
"[T]he Plurinational State of Bolivia respectfully requests the Court:
(a) to reject the objection to its jurisdiction submitted by Chile;
(b) to adjudge and declare that the claim brought by Bolivia enters within its jurisdiction."
*
* *I. Background
15. Bolivia is situated in South America, bordering Chile to the south-west, Peru to the west, Brazil to the north and east, Paraguay to the south-east and Argentina to the south. Bolivia has no sea-coast. Chile, for its part, shares a land boundary with Peru to the north, with Bolivia to the north-east and with Argentina to the east. Its mainland coast faces the Pacific Ocean to the west.
16. Chile and Bolivia gained their independence from Spain in 1818 and 1825 respectively. At the time of its independence, Bolivia had a coastline along the Pacific Ocean, measuring several hundred kilometres. On 10 August 1866, Chile and Bolivia signed a Treaty of Territorial Limits, which established a "line of demarcation of boundaries" between the two States, separating their neighbouring Pacific coast territories. This line was confirmed as the boundary line in the Treaty of Limits between Bolivia and Chile, signed on 6 August 1874. In 1879, Chile declared war on Peru and Bolivia, known as the War of the Pacific. In the course of this war, Chile occupied Bolivia's coastal territory. The hostilities came to an end between Bolivia and Chile with the Truce Pact signed in 1884 in Valparaiso. Under the terms of the Truce Pact, Chile, inter alia, was to continue to govern the coastal region. As a result of these events, Bolivia lost control over its Pacific coast. In 1895, a Treaty on the Transfer of Territory was signed between Bolivia and Chile, but never entered into force. This Treaty included provisions for Bolivia to regain access to the sea, subject to Chile acquiring sovereignty over certain specific territories. On 20 October 1904, the Parties signed the Treaty of Peace and Friendship (hereinafter the "1904 Peace Treaty"), which officially ended the War of the Pacific as between Bolivia and Chile. Under this Treaty, which entered into force on 10 March 1905, the entire Bolivian coastal territory became Chilean and Bolivia was granted a right of commercial transit to Chilean ports. Certain provisions of the 1904 Peace Treaty are set forth below |1| (see paragraph 40).
17. Following the 1904 Peace Treaty, both States made a number of declarations and several diplomatic exchanges took place between them regarding the situation of Bolivia vis-à-vis the Pacific Ocean (see paragraphs 19 and 22 below).
II. General Overview of the Positions of the Parties
18. In its Application instituting proceedings and in its Memorial, Bolivia requests the Court to adjudge and declare that
"(a) Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean;
(b) Chile has breached the said obligation;
(c) Chile must perform the said obligation in good faith, promptly, formally, within a reasonable time and effectively, to grant Bolivia a fully sovereign access to the Pacific Ocean." (See paragraphs 11 and 12 above.)
19. In order to substantiate the existence of the alleged obligation to negotiate and the breach thereof, Bolivia relies on "agreements, diplomatic practice and a series of declarations attributable to [Chile's] highest-level representatives". According to Bolivia, most of these events took place between the conclusion of the 1904 Peace Treaty and 2012.
20. Bolivia, in its Application, seeks to found the jurisdiction of the Court on Article XXXI of the Pact of Bogotá which reads as follows:
"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."
21. Both Bolivia and Chile are parties to the Pact of Bogotá, which was adopted on 30 April 1948. Chile ratified the Pact of Bogotá on 21 August 1967 and deposited its instrument of ratification on 15 April 1974. Bolivia ratified the Pact of Bogotá on 14 April 2011 and deposited its instrument of ratification on 9 June 2011.
When Bolivia signed the Pact of Bogotá in 1948, and again when it ratified it in 2011, it entered a reservation to Article VI. That Article provides:
"The . . . procedures [laid down in the Pact of Bogotá] . . . may not be applied 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 force on the date of the conclusion of the present Treaty."
Bolivia's reservation read as follows:
"The delegation of Bolivia makes a reservation with regard to Article VI, inasmuch as it considers that pacific procedures may also be applied to controversies arising from matters settled by arrangement between the Parties, when the said arrangement affects the vital interests of a State."
Chile objected to Bolivia's reservation. On 10 April 2013, this reservation was withdrawn. Bolivia therefore states that, as of the date the proceedings were initiated, on 24 April 2013, neither Party had any reservation in force precluding the jurisdiction of the Court. Chile, which does not contradict this point, states that the withdrawal of Bolivia's reservation brought the Pact of Bogotá into force between the Parties.
22. In its preliminary objection, Chile claims that, pursuant to Article VI of the Pact of Bogotá, the Court lacks jurisdiction under Article XXXI of the Pact of Bogotá to decide the dispute submitted by Bolivia. Chile maintains that the matters at issue in the present case are territorial sovereignty and the character of Bolivia's access to the Pacific Ocean. Referring to Article VI of the Pact of Bogotá, it contends that these matters were settled by arrangement in the 1904 Peace Treaty and that they remain governed by that Treaty, which was in force on the date of the conclusion of the Pact of Bogotá. According to Chile, the various "agreements, diplomatic practice and . . . declarations" invoked by Bolivia (see paragraph 19 above) concern "in substance the same matter settled in and governed by [the 1904 Peace] Treaty".
23. Bolivia's response is that Chile's preliminary objection is "manifestly unfounded" as it "misconstrues the subject-matter of the dispute" between the Parties. Bolivia maintains that the subject-matter of the dispute concerns the existence and breach of an obligation on the part of Chile to negotiate in good faith Bolivia's sovereign access to the Pacific Ocean. It states that this obligation exists independently of the 1904 Peace Treaty. Accordingly, Bolivia asserts that the matters in dispute are not matters settled or governed by that Treaty, within the meaning of Article VI of the Pact of Bogotá, and that the Court has jurisdiction under Article XXXI thereof.
*
* *24. The essence of Chile's preliminary objection is that the subject-matter of Bolivia's claim falls within Article VI of the Pact of Bogotá. The Court notes, however, that the matter that Chile considers to be excluded from the Court's jurisdiction by virtue of Article VI (see paragraph 22 above) does not correspond to the subject-matter of the dispute as described by Bolivia (see paragraph 23 above). Accordingly, it is necessary for the Court first to state its own views about the subject-matter of the dispute and to reach its own conclusions thereon. The Court will then turn to the question whether the matters in dispute are matters "settled" or "governed" by the 1904 Peace Treaty.
III. Subject-Matter of the Dispute
25. Article 40, paragraph 1, of the Statute of the Court, and Article 38, paragraph 1, of the Rules of Court require an applicant to indicate the "subject of the dispute" in the application. The application shall also specify the "precise nature of the claim" (Art. 38, para. 2, of the Rules of Court ; Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 448, para. 29).
26. It is for the Court itself, however, to determine on an objective basis the subject-matter of the dispute between the parties, that is, to "isolate the real issue in the case and to identify the object of the claim" (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 262, para. 29 ; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 466, para. 30). In doing so, the Court examines the positions of both parties, "while giving particular attention to the formulation of the dispute chosen by the [a]pplicant" (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 448, para. 30 ; see also Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 848, para. 38). The Court recalls that the Rules of Court require that the application specify the "facts and grounds on which the claim is based" and that a memorial include a statement of the "relevant facts" (Art. 38, para. 2, and Art. 49, para. 1, respectively). To identify the subject-matter of the dispute, the Court bases itself on the application, as well as the written and oral pleadings of the parties. In particular, it takes account of the facts that the applicant identifies as the basis for its claim (see Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 263, para. 30 ; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 467, para. 31 ; Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 449, para. 31 ; pp. 449-450, para. 33).
* *
27. Bolivia's Application states that the dispute between Bolivia and Chile relates to "Chile's obligation to negotiate in good faith and effectively with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean". It further indicates that "[t]he subject of the dispute lies in: (a) the existence of that obligation, (b) the non-compliance with that obligation by Chile, and (c) Chile's duty to comply with the said obligation". Bolivia's Memorial is to the same effect (see paragraph 18 above).
28. Chile contends that the subject-matter of Bolivia's claim is territorial sovereignty and the character of Bolivia's access to the Pacific Ocean. It does not dispute that the Application portrays Bolivia's claim as one concerning an obligation to negotiate. However, according to Chile, this alleged obligation is in fact an obligation to conduct negotiations the outcome of which is predetermined, namely, the grant to Bolivia of sovereign access to the Pacific Ocean. Only the details of that sovereign access – such as how much territory is involved and its location – would be subject to negotiation. Thus, in Chile's view, Bolivia is not seeking an open negotiation comprised of good faith exchanges, but rather negotiations with a judicially predetermined outcome. Chile states that the alleged obligation to negotiate should be seen as an "artificial means" to implement Bolivia's alleged right to sovereign access to the Pacific Ocean.
29. Chile also maintains that Bolivia could be granted sovereign access to the sea only through revision or nullification of the 1904 Peace Treaty. Any negotiation resulting in sovereign access to the sea would modify the allocation of sovereignty over territory and the character of Bolivia's access to the sea, upon which the Parties agreed in that Treaty. Accordingly, Chile claims that Bolivia's Application seeks "revision of the settlement reached in 1904 concerning territorial sovereignty and the character of Bolivia's access to the sea".
30. Bolivia responds that Chile misrepresents the dispute that is the subject of the Application. It emphasizes that the Application asks the Court to find that Chile has an obligation to negotiate sovereign access to the sea. Bolivia maintains that the result of those negotiations and the specific modalities of sovereign access are not matters for the Court but, rather, are matters for future agreement to be negotiated by the Parties in good faith. It also states that there is no dispute regarding the validity of the 1904 Peace Treaty and that it does not seek the revision or nullification of that Treaty in these proceedings. Instead, according to Bolivia, the alleged obligation to negotiate exists independently of, and in parallel to, the 1904 Peace Treaty.
* *
31. The Court observes that, consistent with Article 38, paragraph 2, of the Rules of Court, the Application specifies the facts and grounds on which the claim is based. In support of the claim that there is an obligation to negotiate sovereign access to the sea, the Application cites "agreements, diplomatic practice and a series of declarations attributable to [Chile's] highest-level representatives". It also states that Chile – contrary to the position that Chile had itself adopted – later rejected and denied the existence of the alleged obligation to negotiate in 2011 and 2012, and that Chile has breached this obligation. The Application does not invoke the 1904 Peace Treaty as a source of rights or obligations for either Party, nor does it ask the Court to make any pronouncement regarding the legal status of that Treaty. On its face, therefore, the Application presents a dispute about the existence of an obligation to negotiate sovereign access to the sea, and the alleged breach thereof.
32. Chile would have the Court set aside the dispute as presented in the Application because, in its view, the Application obfuscates the true subject-matter of Bolivia's claim – territorial sovereignty and the character of Bolivia's access to the Pacific Ocean. As the Court has observed in the past, applications that are submitted to the Court often present a particular dispute that arises in the context of a broader disagreement between parties (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), pp. 85-86, para. 32 ; see also Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, pp. 91-92, para. 54 ; United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 1980, pp. 19-20, paras. 36-37). The Court considers that, while it may be assumed that sovereign access to the Pacific Ocean is, in the end, Bolivia's goal, a distinction must be drawn between that goal and the related but distinct dispute presented by the Application, namely, whether Chile has an obligation to negotiate Bolivia's sovereign access to the sea and, if such an obligation exists, whether Chile has breached it. The Application does not ask the Court to adjudge and declare that Bolivia has a right to sovereign access.
33. As to Chile's assertion that the Application presents an artificial framing of the subject-matter in dispute, because the relief sought by Bolivia would lead to negotiations with a judicially predetermined outcome and to modification of the 1904 Peace Treaty, the Court recalls that Bolivia does not ask the Court to declare that it has a right to sovereign access to the sea nor to pronounce on the legal status of the 1904 Peace Treaty. Moreover, should this case proceed to the merits, Bolivia's claim would place before the Court the Parties' respective contentions about the existence, nature and content of the alleged obligation to negotiate sovereign access. Even assuming arguendo that the Court were to find the existence of such an obligation, it would not be for the Court to predetermine the outcome of any negotiation that would take place in consequence of that obligation.
34. In view of the foregoing analysis, the Court concludes that the subject-matter of the dispute is whether Chile is obligated to negotiate in good faith Bolivia's sovereign access to the Pacific Ocean, and, if such an obligation exists, whether Chile has breached it.
*
35. The Court recalls that the submissions in Bolivia's Application and Memorial refer to an "obligation to negotiate . . . in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean". Bolivia has repeatedly stated that Chile has an "obligation to negotiate sovereign access to the sea". Chile has also used in its written and oral pleadings the phrase "sovereign access to the sea".
When a Member of the Court asked each Party to define what it meant by the phrase "sovereign access to the sea", Bolivia responded that the "existence and specific content" of the alleged obligation to negotiate sovereign access to the sea was not a matter to be determined at the preliminary stage of the proceedings but, rather was to be determined at the merits stage of the proceedings. Chile, for its part, answered that Bolivia used the expression "sovereign access to the sea" in its Application and Memorial to refer to the transfer or cession to Bolivia of Chilean territory, and that this phrase had the same meaning in Chile's preliminary objection.
36. Bearing in mind these observations by the Parties, the Court emphasizes that the use in this Judgment of the phrases "sovereign access" and "to negotiate sovereign access" should not be understood as expressing any view by the Court about the existence, nature or content of any alleged obligation to negotiate on the part of Chile.
IV. Whether the Matters in Dispute before the Court Fall under Article VI of the Pact of Bogotá
37. The Court will now consider the jurisdictional regime of the Pact of Bogotá. The Court recalls that the Pact contains a number of provisions relating to the judicial settlement of disputes. Article XXXI of the Pact provides that the Parties recognize the compulsory jurisdiction of the Court in all disputes of a juridical nature arising among them concerning matters listed therein (see paragraph 20 above).
38. The other relevant provisions of the Pact of Bogotá are Articles VI and XXXIII. As already noted, Article VI states that:
"The . . . procedures [laid down in the Pact of Bogotá] . . . may not be applied 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 force on the date of the conclusion of the present Treaty."
Article XXXIII of the Pact of Bogotá provides that: "If the parties fail to agree as to whether the Court has jurisdiction over the controversy, the Court itself shall first decide that question."
39. Under Article VI of the Pact of Bogotá, if the Court were to find that, given the subject-matter of the dispute as identified by the Court in paragraph 34 above, the matters in dispute between the Parties were matters "already settled by arrangement between the parties" or "governed by agreements or treaties in force" on 30 April 1948, it would lack the requisite jurisdiction under the Pact of Bogotá to decide the case on the merits. Consequently, the Court will proceed to determine whether the matters in dispute are matters "settled" or "governed" by the 1904 Peace Treaty.
40. The Court recalls the following provisions of the 1904 Peace Treaty, in force on 30 April 1948. Article I re-established the relations of peace and friendship between Bolivia and Chile and terminated the regime established by the 1884 Truce Pact of Valparaiso.
Article II of the 1904 Peace Treaty provides: "[b]y the present Treaty, the territories occupied by Chile by virtue of Article 2 of the Truce Pact of 4 April 1884, are recognized as belonging absolutely and in perpetuity to Chile."
Article II continues by delimiting the boundary between Bolivia and Chile and setting out the procedure for demarcation.
In Article III, the Parties agreed on the construction of a railway between the port of Arica and the Plateau of La Paz, at the expense of Chile.
Article VI provides:
"The Republic of Chile recognizes in favour of Bolivia in perpetuity the fullest and most unrestricted right of commercial transit in its territory and its Pacific ports.
Both Governments will agree, in special acts, upon the method suitable for securing, without prejudice to their respective fiscal interests, the object indicated above."
Article VII provides:
"The Republic of Bolivia shall have the right to establish customs agencies in the ports which it may designate for its commerce. For the present it indicates as such ports for its commerce those of Antofagasta and Arica.
The agencies shall take care that the goods in transit shall go directly from the pier to the railroad station and shall be loaded and transported to the Bolivian customhouses in wagons closed and sealed and with freight schedules which shall indicate the number of packages, their weight and mark, number and content, which shall be exchanged for receipts."
Articles VIII, IX, X and XI regulate aspects of commercial interchange between the Parties, customs and the transit of goods. Chile also made other financial commitments in favour of Bolivia (Arts. IV and V).
* *
41. In Chile's view, Article VI of the Pact of Bogotá undoubtedly excludes the present dispute between the Parties from the Court's jurisdiction. Chile submits that the purpose of Article VI of the Pact of Bogotá was to preclude the possibility of using the dispute settlement procedures of the Pact and, in particular, judicial remedies, "in order to reopen such matters as were settled between the parties to the Pact, because they had been the object of an international judicial decision or a treaty" (citing Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 858, para. 77).
42. Chile submits that there is a distinction to be drawn between the two limbs of Article VI and argues that a matter is "settled" by arrangement if it is resolved by that arrangement, while a matter is "governed" by a treaty if the treaty regulates the relationship between the parties concerning that subject-matter. In the present case, Chile concludes that territorial sovereignty and the character of Bolivia's access to the Pacific Ocean are matters both "settled" and "governed" by the 1904 Peace Treaty.
43. In this respect, Chile argues, first, that Article II of the 1904 Peace Treaty is a comprehensive territorial settlement between the two States and that the question of territorial sovereignty is therefore a matter settled and governed by that provision. Chile also maintains that Article II of the 1904 Peace Treaty has the following material components:
"First, it addresses Chilean sovereignty over what had, until the Pacific War of 1879, been the Bolivian Littoral Department. Second, it delimited the boundary between Chile and Bolivia from south to north in the area of the Chilean provinces of Antofagasta and Tara-paca. Third, it agreed and delimited the frontier line between Chile and Bolivia in the area of Tacna and Arica. Fourth, it provided for the demarcation of the entire boundary."
44. Secondly, Chile contends that the character of Bolivia's access to the sea is a matter settled and governed by Articles VI and VII of the 1904 Peace Treaty, which relate to Bolivia's perpetual right of commercial transit and its right to establish customs agencies in Chilean ports, respectively.
45. Thirdly, Chile submits that Articles III to XI – with Articles VI and VII featuring predominantly – established treaty-based arrangements and commitments governing core aspects of the Parties' relations going forward.
46. Chile thus concludes that the terms of the 1904 Peace Treaty leave no room for doubt that "territorial sovereignty" and "the character of Bolivia's access to the Pacific Ocean" are matters settled and governed by that Treaty.
47. For its part, Bolivia argues that the basis of its claim is that
"independently of the 1904 Treaty Chile agreed to negotiate to grant Bolivia a sovereign access to the Pacific Ocean. It is because this issue was not 'settled' by the 1904 Treaty that both Parties agreed afterwards on negotiations to grant Bolivia such a sovereign access to the Ocean." (Emphasis in the original.)
It maintains that the Parties were negotiating this pending issue until 2011 when Chile allegedly reneged on its obligation to negotiate. It further argues that Chile should comply with its obligation to negotiate Bolivia's sovereign access to the Pacific Ocean and that the 1904 Peace Treaty cannot provide a reasonable basis for Chile's invocation of Article VI of the Pact of Bogotá as a bar to the Court's jurisdiction.
48. While Bolivia agrees that Chile has provided an accurate depiction of the purpose of Article VI (see paragraph 41 above), it finds Chile's interpretation of Article VI overly expansive. Moreover, it argues that Chile fails to draw any practical conclusion from the distinction between the two limbs of that Article. In this respect, it refers to the case of the Territorial and Maritime Dispute (Nicaragua v. Colombia), where the Court concluded that,
"in the specific circumstances of the present case, there is no difference in legal effect, for the purpose of applying Article VI of the Pact, between a given matter being 'settled' by the 1928 Treaty and being 'governed' by that Treaty. In light of the foregoing, the Court will hereafter use the word 'settled'." (Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 848, para. 39.)
Bolivia maintains that in the present case too, there is no substantive difference between the application of the terms "settled" and "governed" for the purposes of Article VI of the Pact.
49. Bolivia submits that, even if Chile's interpretation of the two limbs of Article VI were to be upheld, Chile's objection would still fail because the 1904 Peace Treaty could not have settled a dispute that did not exist in 1904 and because it cannot govern matters such as those put forward by Bolivia, which did not fall within the terms of that Treaty. Bolivia maintains that, by mischaracterizing its claim as one regarding "territorial sovereignty and the character of Bolivia's access to the sea" rather than the one described in its Application and Memorial, namely, "the existence and violation of the obligation to negotiate a sovereign access to the Pacific Ocean agreed upon by Chile", Chile erroneously draws the conclusion that the matters in dispute are matters "settled and governed by the 1904 Peace Treaty" and that Bolivia is merely seeking to "revise or nullify" that Treaty.
* *
50. As the Court concluded above, the subject-matter of the dispute is whether Chile is obligated to negotiate in good faith Bolivia's sovereign access to the Pacific Ocean, and, if such an obligation exists, whether Chile has breached it (see paragraph 34 above). The provisions of the 1904 Peace Treaty set forth at paragraph 40 do not expressly or impliedly address the question of Chile's alleged obligation to negotiate Bolivia's sovereign access to the Pacific Ocean. In the Court's view, therefore, the matters in dispute are matters neither "settled by arrangement between the parties, or by arbitral award or by decision of an international court" nor "governed by agreements or treaties in force on the date of the conclusion of the [Pact of Bogotá]" within the meaning of Article VI of the Pact of Bogotá. This conclusion holds regardless of whether, as Chile maintains, the two limbs of Article VI have a different scope (see paragraph 42 above). The Court does not, therefore, find it necessary in the circumstances of the present case to determine whether or not there is a distinction between the legal effect of those two limbs.
51. The Court recalls that the Parties have presented their respective views on "agreements, diplomatic practice and . . . declarations" invoked by Bolivia to substantiate its claim on the merits (see paragraphs 19 and 22 above). The Court is of the view that, for the purposes of determining the question of its jurisdiction, it is neither necessary nor appropriate to examine those elements.
*
* *52. As noted above, Chile's submission is that the Court should declare that it lacks jurisdiction (see paragraph 14 above). Bolivia's submission is that the Court should reject Chile's objection to jurisdiction (ibid.). In the alternative, Bolivia argues that if the Court addressed Chile's objection on the basis of Chile's characterization of the subject-matter of the dispute, the objection would amount to a refutation of Bolivia's case on the merits, and thus would not possess an exclusively preliminary character. As indicated above, the Court does not accept Chile's characterization of the subject-matter of the dispute (see paragraph 34). Bolivia's alternative argument is therefore moot.
53. The Court recalls however that it is for it to decide, under Article 79, paragraph 9, of the Rules of Court, whether in the circumstances of the case, an objection lacks an exclusively preliminary character. If so, the Court must refrain from upholding or rejecting the objection at the preliminary stage, and reserve its decision on this issue for further proceedings. In the present case, the Court considers that it has all the facts necessary to rule on Chile's objection and that the question whether the matters in dispute are matters "settled" or "governed" by the 1904 Peace Treaty can be answered without determining the dispute, or elements thereof, on the merits (Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 852, para. 51). Consequently, the Court finds that it is not precluded from ruling on Chile's objection at this stage.
V. The Court's Conclusion regarding the Preliminary Objection
54. Bearing in mind the subject-matter of the dispute, as earlier identified (see paragraph 34 above), the Court concludes that the matters in dispute are not matters "already settled by arrangement between the parties, or by arbitral award or by decision of an international court" or "governed by agreements or treaties in force on the date of the conclusion of the [Pact of Bogotá]". Consequently, Article VI does not bar the Court's jurisdiction under Article XXXI of the Pact of Bogotá. Chile's preliminary objection to the jurisdiction of the Court must be dismissed.
55. In accordance with Article 79, paragraph 9, of the Rules of Court, the time-limits for the further proceedings shall be fixed by order of the Court.
*
* *56. For these reasons,
The Court,
(1) By fourteen votes to two,
Rejects the preliminary objection raised by the Republic of Chile;
in favour : President Abraham ; Vice-President Yusuf ; Judges Owada, Tomka, Bennouna, Cancado Trindade, Greenwood, Xue, Donoghue, Sebutinde, Bhandari, Robinson, Gevorgian ; Judge ad hoc Daudet;
against : Judge Gaja ; Judge ad hoc Arbour;
(2) By fourteen votes to two,
Finds that it has jurisdiction, on the basis of Article XXXI of the Pact of Bogotá, to entertain the Application filed by the Plurinational State of Bolivia on 24 April 2013.
in favour : President Abraham ; Vice-President Yusuf ; Judges Owada, Tomka, Bennouna, Cancado Trindade, Greenwood, Xue, Donoghue, Sebutinde, Bhandari, Robinson, Gevorgian ; Judge ad hoc Daudet;
against : Judge Gaja ; Judge ad hoc Arbour.
Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-fourth day of September, two thousand and fifteen, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Plurinational State of Bolivia and the Government of the Republic of Chile, respectively.
(Signed) Ronny Abraham,
President.(Signed) Philippe Couvreur,
Registrar.Judge Bennouna appends a declaration to the Judgment of the Court ; Judge Cançado Trindade appends a separate opinion to the Judgment of the Court ; Judge Gaja appends a declaration to the Judgment of the Court ; Judge ad hoc Arbour appends a dissenting opinion to the Judgment of the Court.
(Initialled) R.A.
(Initialled) Ph.C.
Declaration of Judge Bennouna
Options available under Article 79, paragraph 9, of the Rules – Approach to be adopted by the Court with a view to the sound administration of justice – Exclusively preliminary character of the objection.
I have felt it necessary, in this case, at the stage of the preliminary objection to jurisdiction raised by Chile, to clarify the approach and role which the Court should adopt.
Under Article 79, paragraph 9, of the Rules of Court:
"After hearing the parties, the Court shall give its decision in the form of a judgment, by which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. If the Court rejects the objection or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings."
The first two options, i.e., to uphold or reject the objection, are decisions that are adopted at the present stage of the proceedings; the third option, however, which consists in declaring that the objection does not possess an exclusively preliminary character, involves deferring the decision to the merits stage.
The updated version of Article 67, paragraph 7, of the Rules, which was revised in 1972 (and would become paragraph 7 of Article 79 in 1978, and then, in 2001, paragraph 9 of that same article), was adopted in response to criticism of the Court's application of the previous version of that provision, Article 62, paragraph 5, which provided that "after hearing the parties the Court shall give its decision on the objection or shall join the objection to the merits".
This criticism was mainly voiced in relation to the Barcelona Traction case, where the Court, in its Judgment of 24 July 1964 on the preliminary objections, decided to join two objections to the merits. As Judge Eduardo Jimenez de Arechaga, member of the Committee for the Revision of the Rules of Court, recalled:
"In the latter case [Barcelona Traction], the Court developed a reasoning which has been interpreted as signifying that a joinder is no longer an extreme or exceptional measure, but one which the Court could and would freely adopt whenever it considered that the necessity of avoiding a prejudgement of the merits or the interests of the good administration of justice required such action." ("The Amendments of the Rules of Procedure of the International Court of Justice", American Journal of International Law, Vol. 67, No. 1, 1973, pp. 13-14.)
This concern lay at the heart of the discussions of the Committee for the Revision of the Rules, which sought to limit recourse to joinder of the objection to the merits, or even simply to eliminate the practice altogether. It was suggested, in particular, that the Court could declare an objection to be inadmissible when it related to the merits of the case. It was against this background that the Committee produced its proposal that the circumstances of each case must be taken into account in order for the Court to find that an objection did not possess an exclusively preliminary character. It would then be for the State concerned to raise the objection again at the merits stage.
Be that as it may, the 1972 revision was inspired by the Court's desire to curb abuse of the preliminary objection procedure, while being well aware that a State always has the right to raise an objection to jurisdiction or admissibility at the merits stage of the case in question. In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 30-31, para. 41, the Court emphasized that, "[a]bove all, it is clear that a question of jurisdiction is one which requires decision at the preliminary stage of the proceedings". It is thus only in exceptional circumstances that the Court may find that an objection does not possess an exclusively preliminary character, where it does not have all the elements required to make a decision, or where such a decision would prejudge the dispute, or some aspects thereof, on the merits.
Thus, when a preliminary objection to jurisdiction is raised before the Court, as in the present case, the Court must give it due consideration, after hearing the Parties, and decide whether to uphold or to reject it. It is not bound by Article 79, paragraph 9, to begin by characterizing it as preliminary. In deciding to uphold or reject the objection, the Court implicitly regards it as preliminary. Such an approach accords with the sound administration of justice.
I accordingly take the view that paragraphs 52 and 53 of the Judgment are redundant and misconceived. The Court had already defined the subject-matter of the dispute submitted to it (paragraph 34), and had dismissed Chile's objection based on Article VI of the Pact of Bogotá. It had thus concluded that neither had the matters in dispute been "settled by arrangement between the parties, or by arbitral award or by decision of an international court", nor were they "governed by agreements or treaties in force on the date of the conclusion of the [Pact of Bogotá]", in the sense of Article VI of that instrument (paragraph 50). One therefore cannot understand why, in paragraphs 52 and 53 of the Judgment, the Court revisits an argument that Bolivia had simply put forward on a subsidiary basis, namely that, in the event that the Court were to accept the definition of the subject-matter of the dispute as proposed by Chile, the latter's objection would no longer possess an exclusively preliminary character. That argument had become moot once the Court had rejected the definition proposed by Chile. It is therefore difficult to see why, just before setting out the Judgment's final conclusion, the Court enters into pointless discussions on the issue of the objection's exclusively preliminary character.
(Signed) Mohamed Bennouna.
Separate opinion of Judge Cançado Trindade
Table of Contents
I. Prolegomena
1. I have voted in favour of the adoption today, 24 September 2015, of the present Judgment on Preliminary Objection in the case concerning the Obligation to Negotiate Access to the Pacific Ocean, between Bolivia and Chile, whereby the International Court of Justice (ICJ) has found that it has jurisdiction to consider the claim lodged with it under Article XXXI of the 1948 American Treaty on Pacific Settlement (Pact of Bogotá). Yet, there are certain aspects of the question decided by the Court, to which I attribute importance for its proper understanding, which are not properly reflected in the reasoning of the present Judgment. I feel thus obliged to dwell upon them, in the present Separate Opinion.
2. In particular, I find the treatment dispensed by the ICJ in the present Judgment, to the jurisdictional regime of the Pact of Bogotá, and in particular to the basis of its own jurisdiction (Article XXXI of the Pact) (paras. 37 and 54) as well as to the relevant provision (Article 79 (9)) of the Rules of Court (paras. 52-53), far too succinct. In order to rest on a more solid ground, the Court should, in my perception, have dwelt further upon those provisions, faced as it was with the contention that the respondent State's characterization of the subject-matter of the present dispute would amount to a refutation of the applicant State's case on the merits (para. 52).
3. The ICJ should, in my perception, have devoted as much attention to Article XXXI of the Pact and Article 79 (9) of the Rules of Court as it did as to Article VI of the Pact (paras. 24 and 38-50). In the present Separate Opinion, I deem it fit to stress the importance of the aforementioned provisions, in relation to the factual context of the cas d'espèce and the handling of the question lodged with the Court. To that effect I shall develop my considerations that follow. I shall begin by addressing the reasoning, in search of justice, as to preliminary objections and the merits.
4. I shall next consider the relation between the jurisdictional basis and the merits in the case-law of the Hague Court (PCIJ and ICJ), focusing, earlier on, on the joinder of preliminary objections to the merits, and then on the not exclusively "preliminary" character of objections to jurisdiction (and admissibility). I shall then dwell upon the relevance of general principles of international procedural law, as related to the foundations of the international legal order, and on their incidence, in contentious cases, on distinct incidental proceedings (preliminary objections, provisional measures, counter-claims and intervention), on the joinder of proceedings, as well as on advisory proceedings.
5. After an assessment of the matter, I shall proceed to consider the general principles of international law, Latin American doctrine and the significance of the 1948 Pact of Bogotá. Last but not least, the way will then be paved for the presentation of my concluding observations on the third way (troisième voie/tercera vía) devised by Article 79 (9) of the Rules of Court, namely, that of the determination of an objection not of an exclusively preliminary character, leading to the opening of further proceedings and moving into the merits of the case.
II. Preliminary Objections and Merits: Reasoning in Search of Justice
6. In effect, may I begin by pointing out that a clear cut separation between the procedural stages of preliminary objections and merits reflects the old voluntarist-positivist conception of international justice subjected to State consent. Yet, despite the prevalence of the positivist approach in the era of the Permanent Court of International Justice (PCIJ), soon the old Hague Court reckoned the need to join a preliminary objection to the merits (cf. infra). A preliminary objection to jurisdiction ratione materiae is more likely to appear related to the merits of a case than an objection to jurisdiction ratione personae or ratione temporis |1|. I shall seek to clarify this in my considerations that follow.
7. In effect, to start with, the search for justice transcends any straight-jacket conception of international legal procedure. In my Dissenting Opinion in the ICJ's Judgment on Preliminary Objections of 01.04.2011 in the case concerning the Application of the Convention on the Elimination of All Forms of Racial Discrimination (Georgia versus Russian Federation), I laid down in depth my criticisms of the voluntarist approach to the Court's jurisdiction. As I do not purport to retake here the consideration of this particular issue, I limit myself to refer to the pertinent passages of my aforementioned Dissenting Opinion (paras. 37-63, 79-87, 140, 167 and 181) in this respect.
8. Moreover, in the handling of this issue, the Hague Court (PCIJ and ICJ) has, throughout its history, been attentive to the interests of the parties and the preservation of the equilibrium between them in the course of the procedure. Hence the constant recourse by the Court to the principle of the sound administration of justice (la bonne administration de la justice); the acknowledgment of this principle, in the course of incidental proceedings of the ICJ, has further had repercussion in contemporary expert writing |2|.
9. There are successive examples in the case-law of the Hague Court disclosing its reliance on the principle of the sound administration of justice (la bonne administration de la justice). Early in its life, the PCIJ, in the Panevezys-Saldutiskis Railway (Order of 30.06.1938), in deciding to join Lithuania's preliminary objections to the merits, expressly stated that
"the Court may order the joinder of preliminary objections to the merits, whenever the interests of the good administration of justice require it" (p. 56).
10. This celebre obiter dictum was kept in mind, along the years, by the ICJ as well (cf. infra). In the course of its prolonged handling of the Barcelona Traction case, it was repeatedly pointed out, in expert writing in the mid-sixties, that, even if the joinder to the merits appeared as an exceptional measure, there were situations in which the clear-cut separation of a preliminary objection from the merits could raise much difficulty, the solution thus being the joinder. Given the straight connection between the preliminary objection and the merits, the joinder would correspond to a necessity, in the interests of the sound administration of justice (la bonne administration de la justice) |3|.
11. In all its historical trajectory, the PCIJ, and later on the ICJ from the very beginning of its operation, made it clear that the Court is master of its procedure. It does not and cannot accept straight-jacket conceptions of its own procedure; reasoning is essential to its mission of realization of justice. The path followed has been a long one: for decades the idea of a "joinder" of a preliminary objection to the merits found expression in the then Rules of Court; from the early seventies onwards, the Rules of Court began to provide for further proceedings in the cases, given the fact that the objections at issue did not disclose an exclusively "preliminary" character (infra).
III. Jurisdictional Basis and the Merits: Case-Law of the PCIJ and ICJ
1. Joinder of Preliminary Objections to the Merits
12. Early in its history, the old PCIJ decided to join preliminary objections to the merits of the cases. It did so, for the first time, in the Administration of the Prince von Pless case (Order of 04.02.1933), wherein it stated that the question before it concerned the merits of the case, and thus it could not pass upon "the question of jurisdiction until the case ha[d] been argued upon the merits" (p. 15); it decided to join Poland's preliminary objection to the merits (p. 16).
13. In the same decade, the PCIJ, in the cases Pajzs, Csáky and Esterházy (Order of 23.05.1936), having found the questions raised in Yugoslavia's objections "too intimately" and "too closely interconnected" with Hungary's submissions on the merits, ordered likewise the joinder of those objections to the merits (p. 9). Likewise, shortly afterwards, in the Losinger (Order of 27.06.1936), the PCIJ again ordered the joinder, having found that the plea to the jurisdiction appeared as a "defence on the merits" (pp. 23-24). And the PCIJ, once more, ordered the joinder of preliminary objections to the merits in the aforementioned Panevezys-Saldutiskis Railway case (Order of 30.06.1938, pp. 55-56).
14. For its part, the ICJ, in the handling of subsequent cases, was soon also faced with circumstances which led it to determine the joinder of a preliminary objection of the merits. Thus, in the case of Certain Norwegian Loans (28.09.1956), the ICJ decided, on the basis of an understanding between the parties, to join the preliminary objections to the merits (p. 74). Shortly afterwards, in the case of the Right of Passage over Indian Territory (Judgment on Preliminary Objections, of 26.11.1957), the ICJ pointed out that any evaluation of India's fifth and sixth preliminary objections would risk prejudging the merits; accordingly, it decided to join those objections to the merits (pp. 150 and 152).
15. Later on, in the case of Barcelona Traction (Judgment on Preliminary Objections, of 24.07.1964), the Hague Court, recalling its case-law (PCIJ and ICJ) on the matter (pp. 41-42), decided likewise to join Spain's third and fourth preliminary objections to the merits (p. 46). In the aftermath of its prolonged and cumbersome handling of the Barcelona Traction case (1964-1970), the ICJ deemed it fit to introduce, in 1972, a change in the wording of the provision at issue of the Rules of Court. The PCIJ Rules of Court (dating back to 1936) referred to the Court's deciding on the preliminary objection or joining it to the merits |4|. That provision survived in the ICJ Rules of Court of 1946, and until the amendments introduced into the Rules in 1972 (cf. infra). The provision then adopted in 1972 has been passed on to the Rules of Court of 1978 and 2000 (infra), and remains the same to date.
2. Not Exclusively "Preliminary" Character of Objections to Jurisdiction (and Admissibility)
16. The change in the Rules of Court adopted in 1972 |5|, and subsequently maintained in the Rules of 1978 |6|, and of 2000 |7|, was object of attention in the Court's Judgments on Jurisdiction and Admissibility (of 26.11.1984) and on the Merits (of 27.06.1986) in the Nicaragua versus United States case. In the 1984 Judgment the ICJ, having found that the issue before it concerned "matters of substance relating to the merits of the case", then acknowledged that "the procedural technique formerly available of joinder of preliminary objections to the merits has been done away with since the 1972 revision of the Rules of Court" (para. 76).
17. Then, in its 1986 Judgment on the same case (merits), the ICJ explained the reason of the change introduced in the relevant provision of the Rules of Court, in the following terms:
"The present case is the first in which the Court has had occasion to exercise the power first provided for in the 1972 Rules of Court to declare that a preliminary objection 'does not possess, in the circumstances of the case, an exclusively preliminary character'. It may therefore be appropriate to take this opportunity to comment briefly on the rationale of this provision of the Rules, in the light of the problems to which the handling of preliminary objections has given rise. In exercising its rule-making power under Article 30 of the Statute, and generally in approaching the complex issues which may be raised by the determination of appropriate procedures for the settlement of disputes, the Court has kept in view an approach defined by the [PCIJ]. That Court found that it was at liberty to adopt
'the principle which it considers best calculated to ensure the administration of justice, most suited to procedure before an international tribunal and most in conformity with the fundamental principles of international law' (Mavrommatis Palestine Concessions [case], P.C.I.J., [Judgment of 30.08.1924,] p. 16).
Under the Rules of Court dating back to 1936 (which on this point reflected still earlier practice), the Court had the power to join an objection to the merits 'whenever the interests of the good administration of justice require it' (Panevezys-Saldutiskis Railway [case, Order of 30.06.1938, p. 56]), and in particular where the Court, if it were to decide on the objection, 'would run the risk of adjudicating on questions which appertain to the merits of the case or of prejudging their solution' (ibid.). If this power was exercised, there was always a risk, namely that the Court would ultimately decide the case on the preliminary objection, after requiring the parties fully to plead the merits, – and this did in fact occur ([in the] Barcelona Traction [case, Judgment of 1970, p. 3]). The result was regarded in some quarters as an unnecessary prolongation of an expensive and time-consuming procedure.
Taking into account the wide range of issues which might be presented as preliminary objections, the question which the Court faced was whether to revise the Rules so as to exclude for the future the possibility of joinder to the merits, so that every objection would have to be resolved at the preliminary stage, or to seek a solution which would be more flexible. The solution of considering all preliminary objections immediately and rejecting all possibility of a joinder to the merits had many advocates and presented many advantages. (...) However, that does not solve all questions of preliminary objections, which may, as experience has shown, be to some extent bound up with the merits. The final solution adopted in 1972, and maintained in the 1978 Rules, concerning preliminary objections is the following: the Court is to give its decision
'by which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. If the Court rejects the objection, or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings' (Art. 79, para. 7).
(...) The new rule (...) thus presents one clear advantage: that it qualifies certain objections as preliminary, making it quite clear that when they are exclusively of that character they will have to be decided upon immediately, but if they are not, especially when the character of the objections is not exclusively preliminary because they contain both preliminary aspects and other aspects relating to the merits, they will have to be dealt with at the stage of the merits. This approach also tends to discourage the unnecessary prolongation of proceedings at the jurisdictional stage" (paras. 38-41).
18. In this respect, at the time of change in 1972 of the Rules of Court, a former Latin American Judge of the ICJ observed that, in face of the provision in Article 62 (5) of the 1946 Rules of Court as to the possible joinder of a preliminary objection to the merits, the ICJ was worried with procedural delays, with "duplication of work" and "repetition of arguments" |8|. Hence the amendments introduced the new provision of the Rules of Court, deleting the express reference to the joinder, so as "to provide greater flexibility" and to avoid procedural delays, in sum, to achieve a more orderly and expeditious and "a less onerous administration of international justice" |9|.
19. From the Court's decision in the Nicaragua versus United States case (1984-1986, supra) onwards, the ICJ has pursued this new outlook to the point at issue in its case-law. The Court has thus moved on to further proceedings (on the merits) when the objections lodged before it do not show to have a "preliminary" character. Thus, in its two Judgments on Preliminary Objections (of 27.02.1998) in the Lockerbie cases, the Court saw it fit again to explain the changes effected (in 1972) in its Rules of Court (the new Article 79). Article 79 (9) of the current Rules of Court is clear, in that, if an objection seems to touch on the merits of the case, the Court may declare that it does not possess an "exclusively preliminary character", and move on to further proceedings (on the merits). This amounted to a new outlook of what was earlier referred to |10| as joining the preliminary objection to the merits. In the Lockerbie cases, the Court pondered that
"The solution adopted in 1972 was ultimately not to exclude the power to examine a preliminary objection in the merits phase, but to limit the exercise of that power, by laying down the conditions more strictly" (paras. 48 and 49, respectively, of the two Judgments of 27.02.1998).
20. This new outlook, – the ICJ proceeded, – presented the "clear advantage" of, once finding that the character of the objections at issue was "not exclusively preliminary", discouraging the "unnecessary prolongation of proceedings at the jurisdictional stage". The ICJ then found, in the Lockerbie cases, that the respective objections of the United States and the United Kingdom did not have "an exclusively preliminary character" within the meaning of Article 79 of the Rules, and could only be considered when the Court reached the merits of the case (paras. 50 and 51, respectively, of the two Judgments of 27.02.1998).
21. In the same line of thinking, shortly afterwards, in the case of the Land and Maritime Boundary between Cameroon and Nigeria (Judgment on Preliminary Objections, of 11.06.1998), the ICJ found that it could not give a decision on Nigeria's eighth preliminary objection "as a preliminary matter", and that it had "of necessity (... ) to deal with the merits of Cameroon's request" (para. 116). The Court concluded and declared that the eighth preliminary objection did not have, in the circumstances of the case, "an exclusively preliminary character" (paras. 117-118).
22. One decade later, in its Judgment on Preliminary Objections (of 18.11.2008) in the case of the Application of the Convention against Genocide (Croatia versus Serbia), the ICJ, found that Serbia's second preliminary objection did not possess, in the circumstances of the case, "an exclusively preliminary character" (paras. 130 and 146). Very recently, in its Judgment of 03.02.2015, the ICJ at last delivered its Judgment on the merits of that case. We are here in a domain wherein general principles of law play an important role, whether they are substantive principles (such as those of pacta sunt servanda, or of bona fides), or procedural principles, to which I turn attention now.
IV. Relevance of General Principles of International Procedural Law
1. General principles and the foundations of the international Legal order
23. In my perception, recourse to general principles of international procedural law is in effect ineluctable, in the realization of justice. General principles are always present and relevant, at substantive and procedural levels. Such principles orient the interpretation and application of legal norms. They rest on the foundations of any legal system, which is made to operate on the basis of fundamental principles. Ultimately, without principles there is truly no legal system. Fundamental principles form the substratum of the legal order itself |11|.
24. May it here be recalled that, in another case, like the present one, opposing two other Latin American States (Argentina and Uruguay), the case concerning Pulp Mills on the River Uruguay (Judgment of 20.04.2010), I deemed it fit to call the Court's attention, in my Separate Opinion, to the fact that both contending parties, Argentina and Uruguay, had expressly invoked general principles of law in the course of the contentious proceedings (para. 46). In doing so, I added, they were both
"being faithful to the long-standing tradition of Latin American international legal thinking, which has always been particularly attentive and devoted to general principles of law, in the contexts of both the formal 'sources' of international law |12| as well of codification of international law |13|" (para. 47).
25. The ICJ has remained attentive to general principles (cf. supra) in the exercise of the international judicial function. As master of its procedure, as well as of its jurisdiction, the Court is fully entitled to determine freely the order in which it will resolve the issues raised by the contending parties. And, in doing so, it is not limited by the arguments raised by the contending parties, as indicated by the principle jura novit curia. The Court knows the Law, and, in settling disputes, attentive to the equality of parties, it also says what the Law is (juris dictio, jus dicere).
2. General Principles in Distinct Incidental Proceedings
26. Along the years, as one would expect, the principle of the sound administration of justice (la bonne administration de la justice) has been resorted to in respect of distinct kinds of incidental proceedings (Rules of Court, Articles 73-86), namely, preliminary objections, provisional measures of protection, counter-claims and intervention. The aforementioned principle has marked its presence, as already seen in the present Separate Opinion, in the handling of the incidental proceedings of preliminary objections (cf. supra). Recourse has likewise been made to that principle, in recent years, in the other incidental proceedings of provisional measures, counter-claims and intervention. May I briefly refer to its incidence, as I perceive it, in these other incidental proceedings.
27. In so far as provisional measures of protection are concerned, in my Dissenting Opinion in the case of Questions Relating to the Obligation to Prosecute or to Extradite (Belgium versus Senegal, Order of 28.05.2009), I deemed it fit to recall that, in its case-law, the ICJ has ordered provisional measures so as to contribute "to secure la bonne administration de la justice" (para. 28). I pondered that "in the case-law itself of the ICJ there are already elements disclosing the concern of the Court, when issuing Orders of provisional measures, to strive towards achieving a good administration of justice' (para. 29). I further warned that, in the consideration of the cas d'espèce, the Court should keep in mind that "the right to the realization of justice assumes a central place, and a paramount importance, and becomes thus deserving of particular attention" (para. 29).
28. As to counter-claims, in my Dissenting Opinion in the case of Jurisdictional Immunities of the State (Germany versus Italy, Order of 06.07.2010), I felt obliged to stress that
"(...) Without Italy's counter claim of reparations for damages arising of war crimes, the Court will now have a much narrower horizon to pronounce on Germany's (original) claim of State immunity. The present decision of the Court made tabula rasa of its own previous reasonings, and of 70 years of the more enlightened legal doctrine on the matter, to the effect that counter-claims do assist in achieving the sound administration of justice (la bonne administration de la justice) and in securing the needed equilibrium between the procedural rights of the contending parties.
In any case, as the Court's majority decided summarily to discard the counter-claim as 'inadmissible as such', – with my firm dissent, – it should at least have instructed itself properly by holding, first, public hearings to obtain further clarifications from the contending parties. It should not have taken the present decision without first having heard the contending parties in a public sitting, for five reasons, namely: a) first, as a basic requirement ensuing from the principle of international procedural law of the sound administration of justice (la bonne administration de la justice); b) secondly, because counter-claims are ontologically endowed with autonomy, and ought to be treated on the same footing as the original claims, that they intend to neutralize (supra); c) thirdly, claims and counter-claims, 'directly connected' as they ought to be, require a strict observance of the principe du contradictoire in their handling altogether; d) fourthly, only with the faithful observance of the principe du contradictoire can the procedural equality of the parties (applicant and respondent, rendered respondent and applicant by the counter-claim) be secured; and e) fifthly, last but not least, the issues raised by the original claim and the counter-claim before the Court are far too important – for the settlement of the case as well as for the present and the future of International Law, – to have been dealt with by the Court in the way it did, summarily rejecting the counter-claim" (paras. 29-30).
29. And in so far as intervention is concerned, again in the case in the case of Jurisdictional Immunities of the State (Germany versus Italy, intervention of Greece, Order of 04.07.2011), I developed my reflections on the importance of sound reasoning in that respect (paras. 1-61). More recently, in the Whaling in the Antarctic case (Australia versus Japan, intervention of New Zealand, Order of 06.02.2013), I pondered, in my Separate Opinion, that
"The resurgere of intervention is thus most welcome, propitiating the sound administration of justice (la bonne administration de la justice), attentive to the needs not only of all States concerned but of the international community as a whole, in the conceptual universe of the jus gentium of our times" (para. 68).
30. In sum, the principle of the sound administration of justice (la bonne administration de la justice) permeates the considerations of all the aforementioned incidental proceedings before the Court, namely, preliminary objections, provisional measures of protection, counter-claims and intervention. As expected, general principles mark their presence, and guide, all Court proceedings. The factual contexts of the cases vary, but the incidence of those principles always takes place. Other illustrations, which abound, can be here referred to.
31. A very recent example, of less than three months ago, can be found in the Court's Order of 01.07.2015, in the case of Armed Activities on the Territory of the Congo (D.R. Congo versus Uganda) wherein the Court took account of "the requirements of the sound administration of justice" (para. 7) in order to resume the proceedings in the case as to reparations (para. 8). In my Declaration appended to that Order, I have stressed the relevance of the application of the principle of the sound administration of justice (la bonne administration de la justice) for the proper exercise of the international judicial function (para. 6). Yet another illustration in the case-law of the ICJ is provided by the incidence – as I perceive it – of the principle of the sound administration of justice (la bonne administration de la justice) in the Court's handling of joinder of proceedings in two recent (joined) cases, to which I now briefly turn.
3. General Principles in the Joinder of Proceedings
32. The joinder of proceedings (regulated by Article 47 of the Rules of Court) has found application by the Court in the recent cases of Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica versus Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua versus Costa Rica) (two Court's Orders of 17.04.2013). In both Orders of joinder, the ICJ stated that the joinders previously effected by it, and before it by its predecessor, were "consonant" with "the principle of the sound administration of justice" and also with "the need for judicial economy" |14|. Likewise, in those two cases, the Court deemed it appropriate to join their proceedings, "in conformity with the principle of the sound administration of justice and with the need for judicial economy" |15|.
33. In my Separate Opinions in each of the Orders in the two cases, I devoted special attention to the incidence of the principle of the sound administration of justice in respect of joinders of proceedings |16|. I pointed out that, even if la bonne administration de la justice flourished initially as a maxim, it later gave expression to a principle. In my perception, the proper exercise of the international judicial function "requires the blend of logic and experience (la sagesse et l'expérience), deeply-rooted in legal thinking (of comparative domestic law and of international law)", so as to endeavour "to secure the sound administration of justice". And I added:
"Positivists try in vain to subsume this latter under the interna corporis of the international tribunal at issue, in their well-known incapacity to explain anything that transcends the regulatory texts. (... )
The sound administration of justice enables the international tribunal at issue to tackle questions of procedure even if these latter have 'escaped' the regulations of its interna corporis. It is, in my perception, the idea of an objective justice that, ultimately, guides the sound administration of justice (la bonne administration de la justice), in the line of jusnaturalist thinking. The proper pursuit of justice is in conformity with the general principles of law. With the reassuring evolution and expansion of judicial settlement in recent decades, there has been, not surprisingly, an increasing recourse to the maxim la bonne administration de la justice, – which gives expression to a general principle of law, captured by human conscience |17|" (paras. 13 and 15).
34. Hence the relevance of the proper handling of international procedure, for the sake of the realization of justice (para. 17). In this connection, already in the late thirties, Maurice Bourquin deemed it fit to single out the relevance of the "qualite des procedures". To him,
"Une bonne procédure facilite la solution des difficultés. Une mauvaise procédure fait, en revanche, plus de mal que de bien. Mais ce n'est pas un mécanisme, même admirablement agencé, qui pourrait régler à lui seul une pareille matière. Ce qu'il faut ici, par-dessus tout, c'est un certain état d'esprit, (...) le calme de la raison; c'est cette chose si simple et pourtant si rare qu'on appelle le bon sens" |18|.
35. Common sense is indeed the least common of all senses, it cannot simply be assumed. Hence the need to keep always in mind the principle of la bonne administration de la justice. It is not the only principle of the kind. The maxim audiatur et altera pars (or audi alteram partem) gave expression to the general principle of law providing for procedural equality between the contending parties in the course of judicial proceedings |19|. Another principle of international procedural law, that of jura novit curia (going back to Roman law), acknowledges the freedom and autonomy of the judge in searching for and determining the law applicable to a given dispute, without being restrained by the arguments of the parties |20|.
4. General Principles in Advisory Proceedings
36. The principle of the sound administration of justice (la bonne administration de la justice) has been resorted to not only in the proceedings of contentious cases, but in the Court's advisory proceedings as well. May I turn briefly to these latter now. On successive occasions the Court, by resorting to la bonne administration de la justice, has endeavoured to secure the observance of the principle of procedural equality of the parties. Already in the mid-fifties, the ICJ expressed its attention to general principles of international procedural law.
37. Thus, in its Advisory Opinion (of 23.10.1956) on the Judgments of the ILO Administrative Tribunal upon Complaints Made against UNESCO, the ICJ, after having noted the "absence of equality" (in its advisory proceedings) ensuing from the Statute of the Court itself, pondered that "[t]he principle of equality of the parties follows from the requirements of good administration of justice" (p. 86). The Court would better have stated, more precisely, that the principle of equality of the parties orients or guides the requirements of good administration of justice. In my understanding, principles (prima principia) stand higher than rules or requirements, and orient them.
38. Two and a half decades later, the ICJ again stressed the relevance of "the principle of equality of the parties" in its Advisory Opinion of 20.07.1982, concerning an Application for Review of a Judgment of the U.N. Administrative Tribunal (paras. 29-32 and 79). In its most recent Advisory Opinion (of 01.02.2012), on a Judgment of the ILO Administrative Tribunal upon a Complaint Filed against IFAD, the ICJ insisted on "the right to equality in the proceedings" (para. 30), on "the principle of equality before the Court" as "a central aspect of the good administration of justice" (paras. 35 and 44), and on "the principle of equality in the proceedings before the Court, required by its inherent judicial character and by the good administration of justice" (para. 47) |21|. In my Separate Opinion (paras. 28-51 and 82-118) appended to this recent Advisory Opinion of the ICJ of 2012, I have dwelt in depth (paras. 20-56 and 82-118) upon the imperative of securing the equality of parties in the international legal process.
5. General Assessment
39. As seen in the preceding paragraphs, fundamental principles, forming the substratum of the legal order itself, are always present, at substantive and procedural levels. They orient the interpretation and application of legal norms, and recourse to them is ineluctable in the realization of justice. I have reviewed their incidence in distinct incidental proceedings of contentious cases (of preliminary objections, provisional measures, counter-claims and intervention), in addition to the joinder of proceedings, as well as in advisory proceedings (cf. supra).
40. The ICJ, explaining the reasons to decide the way it did, for example, in its two aforementioned Orders (of 17.04.2013) of joinder of the proceedings in the cases concerning Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica versus Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua versus Costa Rica), pondered that its decision to join the proceedings would allow it "to address simultaneously the totality of the various interrelated and contested issues raised by the Parties" (para. 23). In my Separate Opinions appended to those two Orders, I deemed it fit to state:
"In my perception, the presence of the idea of justice, guiding the sound administration of justice, is ineluctable. Not seldom the text of the Court's interna corporis does not suffice; in order to impart justice, in circumstances of this kind, an international tribunal such as the ICJ is guided by the prima principia. To attempt to offer a definition of the sound administration of justice that would encompass all possible situations that could arise would be far too pretentious, and fruitless. An endless diversity of situations may be faced by the ICJ, leading it – in its pursuit of the realization of justice – to deem it fit to have recourse to the principle of the sound administration of justice (la bonne administration de la justice); this general principle, in sum, finds application in the most diverse circumstances. (... )
(... ) The idea of justice guides the sound administration of justice (la bonne administration de la justice), as manifested, e.g., in decisions aiming at securing the procedural equality of the contending parties.
General principles of law have always marked presence in the pursuit of the realization of justice. In my understanding, they comprise not only those principles acknowledged in national legal systems, but likewise the general principles of international law. They have been repeatedly reaffirmed, time and time again, and, – even if regrettably neglected by segments of contemporary legal doctrine, – they retain their full validity in our days. An international tribunal like the ICJ has consistently had recourse to them in its jurisprudence constante. Despite the characteristic attitude of legal positivism to attempt, in vain, to minimize their role, the truth remains that, without principles, there is no legal system at all, at either national or international level.
General principles of law inform and conform the norms and rules of legal systems. In my understanding, sedimented along the years, general principles of law form the substratum of the national and international legal orders, they are indispensable (forming the jus necessarium, going well beyond the mere jus voluntarium), and they give expression to the idea of an objective justice (proper of jusnaturalist thinking), of universal scope. Last but not least, it is the general principles of law that inspire the interpretation and application of legal norms, and also the law making process itself |22|" (paras. 20 and 25-27).
V. General Principles of International Law, Latin American International Legal Doctrine, and the Significance of the Pact of Bogotá
41. In this connection, may I now turn to the Pact of Bogotá, Article XXXI of which provides the jurisdictional basis for the Court's present Judgment in the case concerning the Obligation to Negotiate Access to the Pacific Ocean. May I briefly recall how the Pact of Bogotá was envisaged in the epoch it came to see the light of the day. As soon as the Pact of Bogotá was adopted in 1948, it was reckoned that, among the solutions in the domain of peaceful settlement of international disputes, stress needed to be laid by the Pact in particular upon the importance of judicial settlement. Article XXXI of the Pact, in providing for the compulsory jurisdiction of the ICJ for the settlement of "all disputes of a juridical nature", was regarded as being in line with Latin American doctrine as to the primacy of law and justice over recourse to force |23|. Already in 1948, it was pointed out that
"La finalidad evidente de todo el sistema creado en [el Pacto de] Bogotá es la de asegurar que ningún conflicto ni ninguna controversia susceptible de poner en peligro la paz de América, quede sin solución pacífica. Para esto, el Pacto generalizó, en un compromiso colectivo, la jurisdicción obligatoria de la Corte Internacional de Justicia" |24|.
42. This brings us closer to the object and purpose of the Pact itself, taken as a whole. In effect, the 1948 Pact of Bogotá was promptly regarded as a work of codification of peaceful settlement in international law, moving beyond the arbitral solution (deeply-rooted in Latin American experience) into judicial settlement itself, without the need of a special agreement to that effect |25|. Without imposing any specific means of peaceful settlement, the Pact of Bogotá took a step forward in rendering obligatory peaceful settlement itself, and enhanced recourse to the ICJ |26|.
43. The adoption of the Pact of Bogotá, with this advance in dispute-settlement, was the culminating point of the evolution, starting in the XIXth century, of the commitment of Latin American countries with peaceful settlement of international disputes, moving towards compulsory jurisdiction of the Hague Court. This feature of Latin American international legal thinking arose out of the concertation of the countries of the region in two series of Conferences, namely: a) the Latin American Conferences (1826-1889) |27|; and b) the Pan American Conferences (1889-1948) |28|, leading to the adoption, in 1948, of the OAS Charter and the Pact of Bogotá. The gradual outcome of this concertation echoed at the II Hague Peace Conference (1907), and in the drafting process of the Statute of the PCIJ (1920) and the ICJ (1945) |29|.
44. The adoption of the Pact of Bogotá in 1948 was the culmination of the sustained and enduring posture of Latin American States in support of peaceful settlement of disputes, and of the compulsory jurisdiction of the Hague Court over disputes of a "juridical nature". In effect, three years after the adoption of the U.N. Charter in 1945, Latin American States did in Bogotá in 1948 what they had announced in San Francisco as a goal: the recourse, under Article XXXI of the Pact of Bogotá, to the compulsory jurisdiction of the ICJ, for the settlement of disputes of a "juridical nature", irrespective of the position that States Parties to the Pact might have taken under the optional clause (Article 36 (2)) of the ICJ Statute. That was a significant step ahead.
45. As it was adopted, the Pact of Bogotá was promptly regarded by its contemporaries as a landmark in the development of this chapter of international law:
"Hasta la reunión de la IX Conferencia [Internacional Americana (Bogotá, 1948)] no existía en América lo que podríamos llamar el estatuto de la pax americana. Había habido sólo una multitud de convenciones que reglamentaban fragmentariamente los distintos medios de solución pacífica. (...) De ahí la necesidad (...) de elaborar un instrumento único que (...) coordinase el conjunto para que constituyesen un cuerpo armónico, tanto en la parte substantiva como en la procedimental. Puede decirse que el Pacto de Bogotá ha alcanzado ese objetivo. Un sólo tratado, bien estructurado, como este, que prevea todos los casos posibles de conflictos entre los Estados americanos y que estipule de una manera ineludible la solución pacífica obligatoria de todas las controversias, implica sin duda un progreso real del Derecho internacional americano. (...)
(...) Nos referimos especialmente (...) a la disposición que confiere, ipso facto y sin necesidad de ningún convenio especial, jurisdicción obligatoria a la Corte Internacional de Justicia para todas las diferencias de carácter jurídico entre los Estados signatarios" |30|.
46. There was, in the Pact of Bogotá, a combination of the obligation to submit disputes of a juridical nature (i.e., those based on claims of legal rights) to judicial or arbitral settlement, – with the free choice of means of peaceful settlement as to other types of controversies; in this way, the 1948 Pact innovated in providing for peaceful settlement of all disputes |31|. In adopting the 1948 Pact of Bogotá, Latin American States made a point of expressing their "spirit of confidence", added to their "feeling of common interest", in judicial settlement (more perfected than arbitral settlement), in particular the compulsory jurisdiction of the ICJ |32|. Hence the relevance of Article XXXI of the Pact, also in relation to Article VI.
47. Moreover, the 1948 Charter of the Organization of American States (OAS) relied upon the adoption of a "special treaty" for the peaceful settlement of international disputes among States of the region, and the Pact of Bogotá was intended to be that "special treaty". Yet, despite the achievement, in historical perspective |33|, of the adoption of the 1948 American Treaty on Pacific Settlement (Pact of Bogotá), and the fact that it had been elaborated in a conceptual framework which best reflected Latin American international law doctrine, – as time went on, not so many States became Parties to it. For those which did not ratify it, earlier treaties continue to operate, providing a diversity of bases for the peaceful settlement of international disputes, which the Pact of Bogotá sought to overcome and systematize.
48. This may explain why, already in the mid-fifties, the possibility of its future revision was already admitted |34|. The 1948 Pact of Bogotá, as just seen, has already a long history, during which the question of its reform was more than once envisaged. From the early seventies onwards, the idea of its reassessment or revision was in effect contemplated, though without effects. Thus, in an Opinion of 16.09.1971, the OAS Inter-American Juridical Committee, having examined the matter, was of the view that its key provisions (such as Articles XXXI and VI) could not be modified or suppressed |35|. The Committee concluded that the Pact of Bogotá rightly regulates all procedures (including compulsory judicial or arbitral ones) of peaceful settlement, and should not be opened to modifications |36|; it finally urged OAS member States to ratify the Pact of Bogotá |37|.
49. In the mid-eighties the idea of its revision was again brought to the fore, – in the 1984 OAS General Assembly, held in Brasília, – in the wider context of the OAS reforms as a whole (1985 Protocol of Cartagena de Indias); concern was expressed in the Committee with the relatively small number of ratifications (13 at that time) and the fact that it had been rarely resorted to in practice until then |38|. The OAS Inter-American Juridical Committee issued a new Opinion on 29.08.1985, and, once again, the idea of reforming the Pact of Bogotá did not prosper. The Committee pondered, in its Opinion of 1985, that the Pact, – the special treaty foreseen under Article 26 of the OAS Charter, – amounted to a codification of the existing treaties on peaceful settlement of disputes in the inter-American system |39|.
50. The Committee decided, in the same Opinion, that Article XXXI of the Pact was to remain unaltered, as it constituted one of its key features, in setting forth the recourse to the ICJ, by means of the recognition of its jurisdiction as "compulsory ipso facto, without the necessity of any special agreement", so long as the treaty remains in force for the settlement of "disputes of a juridical nature" specified in the Pact itself |40|. The Committee thus dismissed any amendments that purported to put an end to the automatism of recourse to the compulsory jurisdiction of the ICJ under the Pact of Bogotá (Article XXXI) |41|. The Committee's Opinion of 1985 was followed by a project presented by Colombia to the OAS in 1986-1987 |42|, which sought an adjustment of the Pact with the provisions of the OAS Charter as amended by the Protocol of Cartagena de Indias |43|.
51. In this respect, in 1987, the OAS Committee on Juridical and Political Affairs (subsidiary organ of the OAS Permanent Council) found the existence of differences of opinion within the OAS as to an eventual revision of the Pact of Bogotá. In the lack of any consensus to amend the Pact, this latter, accordingly, subsisted as it stood, and as it stands today. The OAS General Secretariat, for its part, likewise studied the matter in 1985-1987 |44|, and concluded that the Pact of Bogotá is the "special treaty" adopted in compliance with Article 26 of the OAS Charter, and could only be changed if all States Parties to it so decided |45|, – which was not the case. The Pact remained unchanged.
52. Throughout these exercises, from 1971 to the late eighties, although an argument was made in favour of a reform of the Pact of Bogotá |46|, this latter remained unchanged, and the main trend of expert writing leaned in support of the preservation of its provisions, stressing, in particular, the historical relevance of Article XXXI of the Pact, for ascribing the utmost importance to judicial settlement of "disputes of a juridical nature", by means of automatic acceptance of the compulsory jurisdiction of the ICJ, thus overriding obligations ensuing from optional clause declarations |47|.
53. This was a significant contribution of Latin American international legal thinking to the matter, enhancing compulsory judicial settlement. Article XXXI of the Pact of Bogotá had the legal effect of transforming the "loose relationship" ensuing from optional clause declarations under Article 36 (2) of the ICJ Statute into a "treaty relationship", endowed with
"the binding force and the stability which is characteristic of a conventional link, and not of the regime of the optional clause. In this way, the Latin American States which have accepted the Pact of Bogotá have established, in their mutual relations, and in view of the close historical and cultural ties between them, the compulsory jurisdiction of the Court on much stronger terms than those resulting from the network of declarations made under Article 36 (2) of the Statute" |48|.
VI. The Pact of Bogotá and Judicial Settlement by the ICJ
54. The Pact of Bogotá served as basis of the ICJ's jurisdiction in the case of the 1906 Arbitral Award by the King of Spain (Honduras versus Nicaragua, 1960), – but ever since, until the mid-eighties, the Pact laid dormant, in so far as the ICJ jurisdiction is concerned. Furthermore, the Pact of Bogotá, despite its few ratifications (only [fourteen]) |49|, was to be considered in the context of regional arrangements for conflict resolution in Latin America, given the importance ascribed by Latin American States to the general principle of peaceful settlement of international disputes |50|.
55. After the aforementioned dismissed initiatives as to its eventual amendment (supra), there occurred, from the late eighties onwards, a gradual revival of the Pact of Bogotá, as basis of the ICJ's jurisdiction, in disputes – like the one in the present case – opposing Latin American States. Reference can be made to the Court's Judgments in the cases, e.g., of Border and Transborder Armed Actions (Nicaragua versus Honduras, 1988), Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (2007), Dispute regarding Navigational and Related Rights (Costa Rica versus Nicaragua, 2009), Pulp Mills on the River Uruguay (Argentina versus Uruguay, 2010), Territorial and Maritime Dispute (Nicaragua versus Colombia, 2013), Maritime Dispute (Peru versus Chile, 2014). To these, one may add five other cases, currently pending before the Court |51|. Yet, despite this recent revival of the Pact of Bogotá, I suppose no one would dare to predict, or to hazard a guess, as to further developments in its application in the future. After all, despite advances made, experience shows, within a larger context, that the parcours towards compulsory jurisdiction is a particularly long one, there still remains a long path to follow |52|...
56. It should not pass unnoticed that, significantly, the legacy of Latin American doctrine (supra) as to the enhancement of judicial settlement of international disputes was well captured and sustained by the ICJ, e.g., in its Judgment of 20.12.1988 in the case concerning Border and Transborder Armed Actions (Nicaragua versus Honduras). The ICJ held therein that Article XXXI of the Pact of Bogotá enshrines an engagement which can in no way be amended by a subsequent unilateral declaration. In the words of the Court itself, whenever such declaration is made, "it has no effect on the commitment" resulting from Article XXXI of the Pact (para. 36). The States Parties to the Pact have not linked together Article XXXI and such declarations (para. 40); that commitment "is independent of such declarations" (para. 41).
57. In sum, the Court's jurisdiction is grounded on the provision of a treaty (the Pact of Bogotá), and not on a unilateral declaration, as under the optional clause of Article 36 (2) of the ICJ Statute. Article XXXI was intended to enhance the jurisdiction of the Court, ratione materiae and ratione temporis (not admitting subsequent restrictions, while the Pact remains in force), as well as ratione personae (concerning all States Parties to the Pact). In my own perception, the traditional voluntarist conception (a derivative of anachronical legal positivism) yielded to the reassuring conception of the jus necessarium, to the benefit of the realization of international justice.
58. It was made clear by the ICJ, already in the case of Border and Transborder Armed Actions, that Article XXXI amounts to a compromissory clause which sets forth the engagement, by the States Parties to the Pact, as to the conventional basis of the jurisdiction of the ICJ, to settle all "disputes of a juridical nature", independently of the optional clause (Article 36 (2) of the ICJ Statute). The Court stressed that it was "quite clear from the Pact that the purpose of the American States in drafting it was to reinforce their mutual commitments with regard to the judicial settlement. This is also confirmed by the travaux préparatoires" of the Pact, during which the judicial procedure before the ICJ was regarded as "the principal procedure for the peaceful settlement of conflicts between the American States" (para. 46). Furthermore, expert writing has likewise acknowledged that Article XXXI of the Pact of Bogotá enhanced the procedure of judicial settlement by the ICJ |53|.
VII. Concluding Observations: The Third Way (Troisième Voie/Tercera Vía) under Article 79 (9) of the Rules of Court – Objection Not of an Exclusively Preliminary Character
59. May I come to the remaining aspect that I purport to address in the present Separate Opinion. In its Judgment of today, 24.09.2015, in the case concerning the Obligation to Negotiate Access to the Pacific Ocean, the Court – as I have already pointed out (cf. paras. 2-3, supra) – has very briefly referred to Article XXXI of the Pact of Bogotá and to Article 79 (9) of the Rules of Court, in comparison with the attention it devoted to Article VI of the Pact. May it here be recalled that, in the case of Nicaragua versus United States (merits, Judgment of 27.06.1986), the ICJ elaborated on the scope of Article 79 of the Rules of Court, to the effect that the provision
"presents one clear advantage: that it qualifies certain objections as preliminary, making it quite clear that when they are exclusively of that character they will have to be decided upon immediately, but if they are not, especially when the character of the objections is not exclusively preliminary because they contain both preliminary aspects and other aspects relating to the merits, they will have to be dealt with at the stage of the merits. This approach also tends to discourage the unnecessary prolongation of proceedings at the jurisdictional stage" (para. 41).
60. This point was later reiterated by the ICJ in the Lockerbie cases (preliminary objections, Libya versus United Kingdom and United States, Judgments of 27.02.1998, paras. 49 and 48, respectively). Moreover, in the aforementioned case of Territorial and Maritime Dispute (Nicaragua versus Colombia, preliminary objections, Judgment of 13.12.2007), it was also clarified by the Court that, in principle, a party raising a preliminary objection (to jurisdiction or admissibility) is entitled to have that objection answered at the preliminary stage of the proceedings unless the Court "does not have before it all facts necessary" to decide the question raised, or else the Court, in answering that objection, would prejudge the dispute, or some elements thereof, on the merits (para. 51).
61. Article 79 (9) of the Rules of Court is not limited to the ICJ deciding in one way or another (upholding or rejecting) the objection raised before it in the course of the proceedings. Article 79 (9) in effect contemplates a third way (troisieme voie/tercera via), namely, in its terms:
"declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. If the Court rejects the objection or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings".
62. This being so, the ICJ, moving into the merits, asserts its jurisdiction; this happens because the character of the objection contains aspects relating to the merits, and thus requires an examination of the merits. This is so in the present case concerning the Obligation to Negotiate Access to the Pacific Ocean, as to the dispute arisen between Bolivia and Chile, as to whether their practice subsequent to the 1904 Peace Treaty substantiates an obligation to negotiate on the part of the respondent State. Such negotiations have given rise to a dispute, not settled by the 1904 Peace Treaty. Chile's objection cannot be properly decided without deciding the merits of the dispute, as it does not have an exclusively preliminary character, appearing rather as a defence as to the merits of Bolivia's claim.
63. There have been negotiations, extending well after the adoption of the 1948 Pact of Bogotá, in which both contending parties were actively engaged; although in the present Judgment there is no express reference to any of such negotiations specifically, the ICJ takes note of arguments made in the course of the proceedings of the cas d'espèce to the effect that negotiations took place subsequently to the 1904 Peace Treaty (para. 19) |54| on unsettled issues, well beyond the date of the adoption of the Pact of Bogotá (on 30.04.1948), until 2012. The present case relating to the Obligation to Negotiate Access to the Pacific Ocean concerns such process of negotiations, and the issue whether there is a duty to pursue them further.
64. To assert the duty to negotiate is not the same as to assert the duty to negotiate an agreement, or a given result. The former does not imply the latter. This is a matter for consideration at the merits stage. The Court is here concerned only with the former, the claimed duty to negotiate. The objection raised by the respondent State does not appear as one of an exclusively preliminary character. The substance of it can only be properly addressed in the course of the consideration of the merits of the cas d'espèce, not as a "preliminary objection". The Court is thus right in proceeding – for this particular reason – to fix time-limits for further proceedings (Article 79 (9) in fine), moving into the merits phase. The contending parties' post-1904 exchanges and declarations appear to substantiate an obligation to negotiate, beyond and irrespective of the 1904 Peace Treaty. The Court has thus to move into the merits, in order to examine, and pronounce upon, the punctum pruriens of the cas d'espèce.
65. May it here be further pointed out that, in the case of the Territorial and Maritime Dispute (Nicaragua versus Colombia, preliminary objections, Judgment of 13.12.2007), the ICJ, after recalling the rationale of Article VI of the Pact of Bogotá, found that the dispute had not been settled by the treaty at issue (of 1938, and Protocol of 1930), nor by a judicial decision, and thus found it had jurisdiction under Article XXXI of the Pact (paras. 77 and 120). The ICJ deemed it fit further to recall that Article 79 (9) of its Rules of Court establishes three ways in which it may dispose of a preliminary objection: either to uphold or to reject it, or else to declare that it does not possess an exclusively preliminary character (para. 48).
66. This would have been, in my perception, the proper and more prudent way for the Court to dispose of the preliminary objection raised by Chile in the present case opposing it to Bolivia. In any case, the ICJ would move into the merits. The first and third ways foreseen by Article 79 (9) of the Rules of Court lead, on the basis of distinct reasonings, to a consideration of the merits of the case. In the previous case of the Territorial and Maritime Dispute, opposing Nicaragua to Colombia (supra), the ICJ further stressed that the commitment under Article XXXI of the Pact of Bogotá is an "autonomous one" (independent from an optional clause declaration), which enhances the access to the Court (paras. 134-135) and the judicial settlement of "disputes of a juridical nature" under the Pact of Bogotá. Article XXXI cannot be unduly limited by optional clause declarations, nor by preliminary objections which do not possess an exclusively preliminary character.
67. May I conclude that the objection raised by Chile appears as a defence to Bolivia's claim as to the merits, inextricably interwoven with this latter. And the Court, anyway, does not count on all the necessary information to render a decision on it as a "preliminary" issue. It is, in my view, more in line with the good administration of justice (la bonne administration de la justice) that the Court should keep the issue to be resolved at the merits stage, when the contending parties will have had the opportunity to plead their case in full. This would entail no delays at all for the forthcoming proceedings as to the merits. Last but not least, Article VI of the Pact of Bogotá does not exclude the Court's jurisdiction in respect of disputes arisen after 1948: to hold otherwise would deprive the Pact of its effet utile. The Pact of Bogotá, in line with the mainstream of Latin American international legal doctrine, ascribes great importance to the judicial settlement of disputes, – its main or central achievement, – on the basis of its Article XXXI, a milestone in the conceptual development of this domain of international law.
(Signed) António Augusto CANÇADO TRINDADE.
Declaration of Judge Gaja
1. In its Application (para. 32) and in the submissions included in its Memorial Bolivia requested the Court to adjudge and declare that "Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean", that this obligation has been breached and that it must be complied with. Thus, although the request put the stress on negotiations, these are only a means for enabling Bolivia to acquire a sovereign access to the sea. This fact should have been given more weight by the majority when defining the dispute.
Even if the term "sovereign access to the sea" may be ambiguous, it is uncontested that the 1904 Treaty of Peace and Amity between Bolivia and Chile, which addressed questions of sovereignty, does not contain any reference to such a sovereign access by Bolivia. Article II of the 1904 Treaty concerned the acquisition by Chile of the entire stretch of coastal land which had been under Bolivia's sovereignty before the Pacific war. Moreover, the Treaty comprehensively defined the land boundary between Bolivia and Chile, including with regard to the provinces of Tacna and Arica, the sovereignty over which was still undetermined between Chile and Peru (see Article 3 of the Treaty of Ancon of 20 October 1883 between Chile and Peru) and which, although occupied by Chile at that time, had been defined as "Peruvian provinces" in the Treaty of 23 September 1902 between Bolivia and Peru on Demarcation of Frontiers. Since the political debates in Chile and Peru in the previous years had shown that an agreement on the transfer of the two provinces or even only of Arica to Bolivia was unrealistic, it is understandable that Bolivia and Chile sought, and the 1904 Treaty provided, what could be considered an alternative to the sovereign access to a port. This consisted in granting Bolivia the right of commercial transit, the establishment of customs agencies of Bolivia in the harbours of Arica and Antofagasta, the construction at Chile's expense of a railway line between Arica and La Paz and the attribution of a financial compensation to Bolivia. The content of the Treaty, in particular the costly concessions made by Chile, suggests that the 1904 Treaty was meant to provide a comprehensive settlement, which included the issue of the access to a port. The comprehensive character of the settlement as concerns this latter issue was acknowledged in a pamphlet in 1905 by the Bolivian negotiator, Alberto Gutierrez (El Tratado de paz con Chile, La Paz: Imprenta y Litografia Artistica, 1905, pp. 21, 22, 36 and 53).
Chile's current sovereignty over the relevant coastline is not contested by Bolivia, nor has Bolivia challenged in the present proceedings the validity of the 1904 Treaty or the fact that this Treaty is still in force (CR 2015/21, p. 12, paras. 9-10 and 12 (Chemillier-Gendreau)). Bolivia's aim is to acquire through negotiations a sovereign access to the Pacific Ocean. Bolivia's counsel suggested that "an agreed solution may or may not impact the Treaty" (CR 2015/21, p. 32, para. 7 (Akhavan)) and the Bolivian response to Judge Owada's question concerning the meaning of the term "sovereign access" spoke of "[t]he hypothetical modification of the 1904 Treaty at some point in the future". However, Chile rightly argued that the acquisition by Bolivia of a sovereign access would inevitably affect in part the 1904 Treaty. "Sovereign" access would have to be through a territory which was agreed in the 1904 Treaty as not being under Bolivian sovereignty.
2. The Court's jurisdiction has been invoked by Bolivia on the basis of Article XXXI of the Pact of Bogotá, which gives the Court jurisdiction over a wide range of disputes. Chile does not contest the scope of Article XXXI but objects that the Court's jurisdiction is barred by Article VI of the same Pact, which excludes "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 force on the date of the conclusion of the present Treaty". According to Chile, the question of Bolivia's sovereign access to the sea was settled by the 1904 Treaty.
What is required under the first limb of Article VI for excluding the application of the procedures provided for in the Pact is that the dispute concerns a certain matter or question that was "already settled" either by an arrangement or a judicial or arbitral decision before the date of conclusion of the Pact of Bogotá. As Mr. Belaunde, the delegate of Peru who proposed the text that became Article VI, explained at the Bogotá Conference, "[t]he danger is that the matter could be re-opened, or that there could be an attempt to re-open it" (Preliminary Objection of Chile, Vol. I, Ann. 12, p. 199; "El peligro esta en que se reabra, en que se quiera reabrir"). The Court noted in the Territorial and Maritime Dispute (Nicaragua v. Colombia) (Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 858, para. 77) that "the clear purpose of this provision was to preclude the possibility of using those procedures, and in particular judicial remedies, in order to reopen such matters as were settled between the parties to the Pact".
When Article VI in its second limb refers to "matters governed by agreements or treaties in force", it is unlikely that the provision intends to draw a distinction according to the source, between informal arrangements and judicial or arbitral decisions, on the one hand, and formal treaties, on the other. The distinction could rather lie between matters settled once and for all and matters regulated by treaty provisions that have a continuous application, such as those in the 1904 Treaty concerning the determination of the boundary or commercial transit. A concern about the reopening of issues would seem to apply also with regard to matters governed by treaties.
Whichever interpretation is given to Article VI, it would be difficult to conclude that the matter of Bolivian access to the sea was not settled by the 1904 Treaty.
3. A matter that was settled may subsequently become unsettled. Should the matter concerned by the dispute be regarded as having been reopened before 30 April 1948, the date of the adoption of the Pact of Bogotá, the Court would have jurisdiction over the dispute.
The settlement of a dispute necessarily depends, directly or indirectly, on the consent of the Parties. Also the reopening of a settled matter must be understood as requiring such consent. A new dispute could arise because of the unilateral action of one State, but both States need to be involved in unsettling what had previously been settled between them. For that purpose, it is not necessary to find that an obligation to negotiate has arisen. Negotiations freely entered into by the Parties could conceivably cause a settled matter to become again unsettled.
The hypothesis that the issue of Bolivia's sovereign access to the sea was reopened before 30 April 1948 mainly appears to rest (1) on a memorandum dated 9 September 1919 which stated that "[i]ndependently of the stipulations of the 1904 Treaty of Peace, Chile accepts to engage into new negotiations to fulfil the longing of the friendly country, subordinated to the victory of Chile in the plebiscite"; (2) on a declaration made by Chile on 10 January 1920 that "Chile is willing to make all efforts for Bolivia to acquire an access to the sea of its own, by ceding a significant part of the area to the north of Arica . . ." ("Chile está dispuesto a procurar que Bolivia adquiera una salida propia al mar, cediéndole una parte importante de esa zona al norte de Arica"); and (3) on the memorandum by the Chilean Government of 4 December 1926 in reply to the proposal to hand over Tacna and Arica to Bolivia, made by the United States Secretary of State Kellogg. The latter memorandum says that "the Chilean Government agrees to consider, in principle, the proposal" ("el Gobierno de Chile accede a considerar en principio la proposición").
4. Given that, according to the above analysis, it would be necessary to ascertain whether matters were unsettled subsequent to the 1904 Treaty, Chile's preliminary objection would raise questions which relate to the negotiations between the Parties. One would have to consider whether, and to what extent, the Court may examine these questions at the stage of a decision on the preliminary objection.
According to Article 79, paragraph 9, of the Rules, the Court "shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character". In the Territorial and Maritime Dispute (Nicaragua v. Colombia) (I.C.J. Reports 2007 (II), p. 852, para. 51), where an objection had also been lodged on the basis of Article VI of the Pact of Bogotá, the Court said that:
"a party raising preliminary objections is entitled to have these objections answered at the preliminary stage of the proceedings unless the Court does not have before it all facts necessary to decide the questions raised or if answering the preliminary objection would determine the dispute, or some elements thereof, on the merits".
When Article VI of the Pact of Bogotá is invoked, the issue of whether a matter was settled will often affect both the jurisdiction and the merits. However, the Court did not refrain in the Territorial and Maritime Dispute (Nicaragua v. Colombia) from considering that its judgment on preliminary objections could "touch upon certain aspects of the merits of the case" (I.C.J. Reports 2007 (II), p. 852, para. 51). The Court found in its judgment on preliminary objections that certain questions, concerning the sovereignty over three named islands, were to be regarded as settled by a bilateral treaty between the Parties (ibid., pp. 860-861, paras. 86 to 90). The Court's jurisdiction was upheld with regard to other questions relating to territorial sovereignty. These matters were considered as not "settled" by the bilateral treaty and were therefore considered as falling within the Court's jurisdiction (ibid., p. 863, para. 97, and p. 865, para. 104).
In the present case the Court could have considered in its Judgment on the preliminary objection whether certain matters had been settled by the 1904 Treaty. However, the Court could not have come to a decision on jurisdiction without also examining whether a matter settled by that Treaty had been subsequently unsettled. For this purpose, the Court would have had to consider some questions relating to negotiations which are also part of the merits of the case. Given the connection between the role that negotiations may have had in unsettling a matter previously settled, on the one hand, and the possibility to infer from negotiations an obligation to negotiate, on the other, the Court should have found that under these circumstances the objection does not have an exclusively preliminary character.
(Signed) Giorgio GAJA.
Dissenting opinion of Judge ad hoc Arbour
Preliminary objection of Chile does not possess an exclusively preliminary character – Bolivia inconsistent as to the subject-matter – If Bolivia alleged obligation of result then Court's jurisdiction would be precluded by Article VI of the Pact of Bogotá – Until merits argued, Court not in a position to accurately identify subject-matter – Question of jurisdiction should have been left to the merits.
I. Introduction
1. With regret, and with the greatest respect, I disagree with the decision of the Court on the disposition of Chile's preliminary objection to the jurisdiction of the Court. For the reasons set out below, I conclude that the objection does not possess an exclusively preliminary character, within the meaning of Article 79 (9) of the Rules of Court, and that its disposition should be reserved until after the case has been fully heard on the merits.
II. Bolivia's characterization of the subject-matter of the dispute
2. I turn first to the characterization of the subject-matter of the dispute. In that process, the Court must strive to "isolate the real issue in the case and to identify the object of the claim" (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 262, para. 29; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 466, para. 30). As the Court notes at paragraph 26 of the Judgment, this analysis should be based on the formulation of the dispute by the Applicant, taking into account the written and oral pleadings of the Parties. It is therefore useful to examine how Bolivia has characterized its claim, and how its position evolved throughout the course of the hearings.
3. Chile's jurisdictional objection is based on its understanding that Bolivia is claiming that Chile has an obligation to grant it sovereign access to the Pacific through a negotiation process; as Chile understands it, this obligation would be one of result. Chile argues that sovereign access to the sea is the "ultimate object" of Bolivia's claim, such that:
"[t]he alleged obligation to negotiate is merely a means – indeed a notably artificial means – articulated by Bolivia to seek to implement that alleged right. When one comes to the details of its claim, it is plain that, for Bolivia, negotiation is not the usual process of good faith exchanges, but rather a judicially prescribed procedure leading only to one predetermined outcome: that is, the grant to Bolivia of Chilean territory in order to obtain sovereign access to the sea." (CR 2015/18, p. 47, para. 4 (Wordsworth).)
4. However, it has not always been clear in Bolivia's pleadings whether it does in fact allege an obligation of result. Bolivia articulated the nature of its claim in several different ways.
5. Both Bolivia's Application and its Memorial set out the subject-matter of the dispute as follows:
"32. For the above reasons Bolivia respectfully requests the Court to adjudge and declare that:
(a) Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean;
(b) Chile has breached the said obligation;
(c) Chile must perform the said obligation in good faith, promptly, formally, within a reasonable time and effectively, to grant Bolivia a fully sovereign access to the Pacific Ocean.
33. Bolivia reserves the right to supplement, modify and amplify the present Application in the course of the proceedings." (Application of Bolivia, p. 20; see also Memorial of Bolivia, p. 10, para. 28.)
6. The following excerpts from Bolivia's Memorial make unequivocal that what it seeks is for the Court to declare an obligation to negotiate to a particular result:
"This section sets out the scope of Chile's obligation to negotiate sovereign access to the sea. This obligation is more exacting than a general obligation to negotiate under international law. In particular, Chile is under an affirmative obligation to negotiate in good faith in order to achieve a particular result; namely, a sovereign access to the Pacific Ocean for Bolivia." (Memorial of Bolivia, p. 97, para. 221.)
7. The Memorial underscores the distinction between an obligation of result and an obligation of means by relying on the advisory opinion in Nuclear Weapons. It notes that:
"The Court declared that the effect of an obligation to negotiate in good faith can in certain circumstances be to create not only an obligation to negotiate but also an obligation to conclude an agreement. Analysing Article VI of the Treaty on the Non-proliferation of Nuclear Weapons, the Court declared that it sets out more than obligation of conduct: there is an obligation of result.
'The legal import of that obligation – the Court notes – goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith.'" (Legality of the Threat and Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 263, para. 99.)
....................................................................................................
Chile's obligation to negotiate a sovereign access to the sea for Bolivia is of the same nature." (Memorial of Bolivia, pp. 117-119, paras. 283-286.)
8. Bolivia draws a parallel with other obligations of result, such as under Article 125 of UNCLOS, explaining that "[t]he duty to reach a certain result by agreement plainly implies not merely a duty to negotiate, but a duty to negotiate in order to reach that agreement" (Memorial of Bolivia, p. 99, para. 226). It explains this further as follows:
"Chile is under a more specific obligation to negotiate with Bolivia concerning sovereign access to the sea. It is not merely a matter of identifying and defining the scope of a dispute or disagreement between the two States: rather there is a legal obligation to pursue the realization of a defined objective by means of negotiations." (Memorial of Bolivia, p. 104, para. 237.)
9. Bolivia notes that this obligation is permanent and continuing, able to be brought to an end only by a successful agreement:
"The obligation to negotiate remains in force so long as the purpose of the obligation is not fulfilled – a fortiori when, as in the present case, it is an obligation to negotiate in order to achieve a specific result." (Memorial of Bolivia, p. 120, para. 290; see also p. 119, para. 287.)
10. The Memorial frequently refers to the alleged obligation as one "to negotiate a sovereign access to the sea". But in the terms of the above this means not a mere obligation to negotiate, but an obligation to negotiate to achieve a certain result. Bolivia states that it is not asking the Court to define the "precise scope or modalities of the right to sovereign access to the sea", instead, it is these modalities that will be the subject of the negotiations "in good faith to achieve the particular result of a sovereign access to the Pacific" for Bolivia (Memorial of Bolivia, p. 194, para. 497). But that result of sovereign access is not itself negotiable, it is an inherent part of the alleged obligation.
11. Although Bolivia's Written Statement on the Preliminary Objection states that the subject-matter has to be identified by reference to its Application and Memorial, it does not explicitly refer to an obligation of result, stating only that the subject-matter is "the non-compliance by Chile with its obligation to negotiate in good faith a sovereign access for Bolivia to the Pacific Ocean, and its repudiation of that obligation" (Written Statement of Bolivia, p. 8, para. 21).
12. At the first round of oral hearings, Bolivia mainly used the language "obligation to negotiate", seemingly continuing to refer to an obligation of result. Bolivia repeated its formulation from the Application, alleging that Chile had an obligation to negotiate in order to reach an agreement granting sovereign access (CR 2015/19, p. 18, para. 14 (Forteau); emphasis added). Professor Akhavan returned at the end of the first round to the idea of an obligation of result, noting that Bolivia was not requesting the Court to determine the specific modality of access, whether it be a corridor, coastal enclave, special zone, or some other practical solution; "Bolivia merely asks the Court that Chile honour its repeated agreement to negotiate such a solution" (CR 2015/19, p. 51, para. 3 (Akhavan)).
13. It was only during its second round of oral pleadings that Bolivia introduced some ambiguity in its position regarding the nature of Chile's alleged obligation to negotiate. It suggested that the obligation was not "self-enforcing" and would not in itself result in Bolivia gaining sovereign access to the sea, rather it simply constituted an obligation to enter into negotiations with the aim of reaching an agreement on sovereign access (CR 2015/21, p. 18, para. 9 (Forteau)). Bolivia flatly rejected the assertion of Chile that "Bolivia is asking the Court to order Chile to renegotiate to change Bolivia's non-sovereign access through Chilean territory into sovereign access" (CR 2015/21, p. 28, para. 11 (Remiro-Brotóns), emphasis by Remiro-Brotóns; citing CR 2015/20, p. 39 (Koh)). It quoted Gabčikovo-Nagymaros that it is not for the Court to impose a result for the negotiations and stated that it will be for the Parties to determine a practical solution (CR 2015/21, p. 32, para. 7 (Akhavan); citing Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, para. 141).
14. Finally, subsequent to the close of the oral rounds, both Parties responded in writing to a question asked by Judge Owada as to the meaning of the phrase "sovereign access to the sea". Chile repeated its argument that Bolivia was effectively asking the Court to order that Chile was under an obligation to "transfer to Bolivia sovereignty over [Chile's] coastal territory". Bolivia's answer is worth quoting directly because it is central to the Court's reasoning in this case:
"With regard to the relevance of this question to the jurisdiction of the Court, Bolivia observes that its case on the merits is that Chile has repeatedly agreed to negotiate Bolivia's sovereign access to the Pacific Ocean to resolve the problem of its landlocked situation. To the extent that the meaning of that term and its specific content can be defined, it is necessary to determine the understanding of the parties in the successive agreements they have concluded. The existence and specific content of the parties' agreement, Bolivia respectfully submits, is clearly not a matter for determination at the preliminary stage of proceedings, and must instead be determined at the merits stage of proceedings." (Written reply of Bolivia to the question put by Judge Owada at the public sitting held on the afternoon of 8 May 2015.)
15. It is thus not clear whether Bolivia still maintains the position taken in its Memorial that the alleged obligation to negotiate is an obligation of result. In fact, Bolivia makes the point that the exact nature of the obligation cannot be determined until the merits have been heard, a point with which I agree, and it is for that reason that I would decline to pronounce on the jurisdictional issue until the case has been fully heard on the merits. However, as discussed below, the Court appears unconcerned with this ambiguity in articulating its finding about the subject-matter of the claim.
III. The Court's characterization of the subject-matter
16. It is of course for the Court to determine the subject-matter of the case. Here, the Court concludes:
"that the subject-matter of the dispute is whether Chile is obligated to negotiate in good faith Bolivia's sovereign access to the Pacific Ocean, and, if such obligation exists, whether Chile has breached it" (Judgment, paragraph 34).
17. The Court states that:
"the use in this Judgment of the phrases 'sovereign access' and 'to negotiate sovereign access' should not be understood as expressing any view by the Court about the existence, nature or content of any alleged obligation to negotiate on the part of Chile" (Judgment, paragraph 36).
Yet the Court adds: "Even assuming arguendo that the Court were to find the existence of such an obligation, it would not be for the Court to predetermine the outcome of any negotiation that would take place in consequence of that obligation." (Judgment, paragraph 33.)
IV. Exclusively preliminary character of the objection
18. In my respectful view, until the case is heard on the merits and the Court is in a position to determine not only the existence of the alleged obligation to negotiate but also its true nature, content and scope, it is not possible to decide whether the real subject-matter in this case is a "matter . . . settled by arrangement between the parties or governed by agreements or by [the 1904 Peace] Treaty" before 1948, within the meaning of Article VI of the Pact of Bogotá.
19. It is only at the merits stage of the case that we will be in a position to determine whether the alleged obligation to negotiate, if it exists as a matter of international law, compels Chile to reach an accord with Bolivia granting it sovereign access to the Pacific Ocean – on terms to be agreed upon – or whether it merely compels the Parties to explore in good faith the feasibility as well as the modalities of that option. In my view, it is only in the latter case that Bolivia can avoid the application of Article VI of the Pact of Bogotá.
20. I turn now to a brief analysis of the relevant dispositions of the Pact of Bogotá to establish why that is so.
21. While Article XXXI confers jurisdiction on the Court "in all disputes of a juridical nature ... concerning ... any question of international law", Article VI provides that this compulsory jurisdiction may not be applied to "matters already settled by arrangement between the parties ... or which are governed by agreements or treaties in force on the date of the conclusion of the present Treaty".
22. Chile relies on the comprehensive provisions of the 1904 Peace Treaty to argue that, properly understood, Bolivia's claim deals with a matter settled or governed by that Treaty and is therefore not within the jurisdiction of the Court under Article VI of the Pact of Bogotá. The Court summarizes the applicable provision of the 1904 Peace Treaty at paragraph 40 of the Judgment and I agree with that summary. In short, the Treaty settles the territorial boundaries "absolutely and in perpetuity" between Bolivia and Chile, and grants Bolivia in perpetuity full and unrestricted commercial transit to its ports.
23. Having characterized the subject-matter of the disputes as it did, the Court concludes as follows:
"The provisions of the 1904 Peace Treaty . . . do not expressly or impliedly address the question of Chile's alleged obligation to negotiate Bolivia's sovereign access to the Pacific Ocean. In the Court's view, therefore, the matters in dispute are matters neither 'settled by arrangement between the parties, or by arbitral award or by decision of an international court' nor 'governed by agreements or treaties in force on the date of the conclusion of the [Pact of Bogotá]' within the meaning of Article VI of the Pact of Bogotá." (Judgment, paragraph 50.)
24. With respect, this is a triumph of form over substance. At paragraph 32 of the Judgment, the Court draws a distinction between Bolivia's end goal of sovereign access to the Pacific Ocean and "the related but distinct dispute presented by the Application, namely, whether Chile has an obligation to negotiate Bolivia's sovereign access to the sea and, if such an obligation exists, whether Chile has breached it". The Court focuses exclusively on the alleged existence of an obligation to negotiate – the existence of which will of course have to be determined on the merits – without explicitly addressing the alleged substantive content and scope of that obligation. While it is true that its Application "does not ask the Court to adjudge and declare that Bolivia has a right to sovereign access" (Judgment, paragraph 32), this is in effect what Bolivia requests in its Application and Memorial, if not in all its oral submissions, as I have explained above (paragraphs 5-15).
25. Indeed, should the Court find, on the merits, that Chile has an obligation to cede sovereignty over part of its territory to Bolivia, on terms to be negotiated (an obligation of result, as originally argued by Bolivia), this would, in my respectful view, fall squarely under Article VI of the Pact of Bogotá as "a matter . . . settled . . . or governed . . ." by the 1904 Peace Treaty. In such a case, this Court would have no jurisdiction to hear a dispute of a juridical nature relating to such a matter. If an obligation of that nature were found to exist, it would inevitably require modifications to the 1904 Peace Treaty, thereby confirming that the matter was governed by such Treaty and therefore excluded from the Court' s jurisdiction.
26. I am conscious that the Court may have largely avoided that difficulty in characterizing the subject-matter of the dispute as it did at paragraph 33 of the Judgment, which I quote again:
"Even assuming arguendo that the Court were to find the existence of such an obligation [to negotiate sovereign access], it would not be for the Court to predetermine the outcome of any negotiation that would take place in consequence of that obligation."
27. However, in my view this case falls squarely within the jurisprudence of the Court under Article 79 (9) of the Rules of Court, which requires the Court to defer its disposition of a preliminary objection if it either "does not have before it all facts necessary decide the questions raised or if answering the preliminary objection would determine the dispute, or some elements thereof, on the merits" (Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 852, para. 51).
28. The issue at this stage of the proceedings is purely jurisdictional. Any treaty or agreement always implicitly leaves open the possibility for the parties to renegotiate its terms in the future. Put another way, no agreement could close in perpetuity the possibility of its revision. Therefore the real question is whether a party to the Pact of Bogotá purported to reopen a matter settled or governed by treaty or other agreement before 1948. I stress again that of course nothing ever prevents parties from attempting to renegotiate a matter settled or governed by the 1904 Peace Treaty. Should they do so, however, parties to the Pact of Bogotá may not benefit from the pre-agreed access to this Court under Article XXXI of the Pact in the event of a dispute occurring in the course of this reopening of settled matters.
29. Until the merits are fully argued, the Court is not in a position to identify the true nature, content and scope of the alleged obligation to negotiate, and whether it amounts to an obligation of result or an obligation of means. Only once this obligation has been defined can the Court determine whether it is a matter "settled" or "governed" by the 1904 Peace Treaty for the purposes of Article VI, and therefore whether it has jurisdiction.
V. Conclusion
30. Because of the uncertainty about the true nature, content and scope of the alleged obligation to negotiate, which will only be resolved when the merits of the case is heard, in my view it is premature to decide whether the subject-matter of the dispute between the Parties deals with a matter falling within Article VI of the Pact of Bogotá. The proper disposition of Chile's preliminary objection would be to postpone the decision until after the case has been fully heard on the merits.
(Signed) Louise Arbour
[Source: International Court of Justice, Reports of Judgments, Advisory Opinions and Orders, The Hague, 24Sep15, pp. 592-611]
Notes - Judgment:
1. The original language of the 1904 Peace Treaty is Spanish. All provisions from the Treaty that are quoted in this Judgment have been translated into English by the Registry. [Back]
Notes - Separate Opinion of Judge Cançado Trindade
1. Cf., to this effect, F. Ammoun, "La jonction des exceptions préliminaires au fond en Droit international public", in Il processo internazionale – Studi in onore di G. Morelli, 14 Comunicazioni e Studi (1975) pp. 34 and 38, and cf. p. 21. [Back]
2. Cf., inter alia, e.g., Hironobu Sakai, "La bonne administration de la justice in the Incidental Proceedings of the International Court of Justice", 55 Japanese Yearbook of International Law (2012) pp. 110-133; R. Kolb, "La maxime de la 'bonne administration de la justice' dans la jurisprudence internationale", in: La bonne administration de la justice internationale, 27 L 'Observateur des Nations Unies (2009)-II, pp. 5-21. [Back]
3. Cf. M. Mabrouk, Les exceptions de procédure devant les juridictions internationales, Paris, LGDJ, 1966, pp. 286-289; G. Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour Internationale, Paris, Pedone, 1967, pp. 194-198; E. Grisel, Les exceptions d'incompétence et d'irrecevabilité dans la procédure de la Cour Internationale de Justice, Berne, Ed. H. Lang & Cie., 1968, pp. 175-180 and 182. [Back]
4. Paragraph 5 of Article 62 of the Rules of Court (of 1936) provided that: – "After hearing the Parties the Court shall give its decision on the objection or shall join the objection to the merits. If the Court overrules the objection or joins it to the merits, it shall once more fix time-limits for the further proceedings". [Back]
5. Paragraph 7 of Article 69 of the Rules of Court (of 1972) provided that: – "After hearing the parties, the Court shall give its decision in the form of a judgment, but which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. If the Court rejects the objection or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for the further proceedings". [Back]
6. Paragraph 7 of Article 79 of the Rules of Court (of 1978) had exactly the same content and phraseology of Article 69 (7) of the previous Rules of Court (of 1972). [Back]
7. Paragraph 9 of Article 79 of the current Rules of Court (of 2000) has likewise the same content and phraseology of Article 79 (7) of the previous Rules of Court (of 1978). [Back]
8. E. Jiménez de Arechaga, "The Amendments to the Rules of Procedure of the International Court of Justice", 67 American Journal of International Law (1973) pp. 11 and 13. [Back]
10. Article 62 (5) of the previous Rules of Court. [Back]
11. A.A. Cançado Trindade, International Law for Humankind – Towards a New Jus Gentium, 2nd. rev. ed., Leiden/The Hague, Nijhoff/The Hague Academy of International Law, 2013, pp. 58-61; and cf. A.A. Cançado Trindade, "Foundations of International Law: The Role and Importance of Its Basic Principles", in XXX Curso de Derecho International Organizado por el Comité Jurídico Interamericano –OEA (2003) pp. 359-415. [Back]
12. Andrés Bello, Principios de Derecho International (1832), 3rd. ed., Paris, Libr. Garnier Hermanos, 1873, pp. 3 et seq.; C. Calvo, Manuel de droit international public et privé, 3rd. rev. ed., Paris, A. Rousseau Ed., 1892, ch. I, pp. 69-83; L.M. Drago, La República Argentina y el Caso de Venezuela, Buenos Aires, Impr. Coni Hermanos, 1903, pp. 1-18; L.M. Drago, La Doctrina Drago – Colección de Documentos (pres. S. Perez Triana), London, Impr. Wertheimer, 1908, pp. 115-127 and 205; A.N. Vivot, La Doctrina Drago, Buenos Aires, Edit. Coni Hermanos, 1911, pp. 39-279; II Conférence de la Paix, Actes et discours de M. Ruy Barbosa, La Haye, W.P. Van Stockum, 1907, pp. 60-81, 116-126, 208-223 and 315-330; Ruy Barbosa, Obras Completas, vol. XXXIV (1907)-II: A Segunda Conferência da Paz, Rio de Janeiro, MEC, 1966, pp. 65, 163, 252, 327 and 393-395; Ruy Barbosa, Conceptos Modernos del Derecho Internacional, Buenos Aires, Impr. Coni Hermanos, 1916, pp. 28-29 and 47-49; Clovis Bevilaqua, Direito Público International (A Synthese dos Princípios e a Contribuição do Brazil), vol. I, Rio de Janeiro, Livr. Francisco Alves, 1910, pp. 11-15, 21-26, 90-95, 179-180 and 239-240; Raul Fernandes, Le principe de l'égalité juridique des États dans l'activité internationale de l'après-guerre, Geneva, Impr. A. Kundig, 1921, pp. 18-22 and 33; J.-M. Yepes, "La contribution de l'Amérique Latine au développement du Droit international public et privé", 32 Recueil des Cours de I'Académie de Droit International de La Haye [RCADI] (1930) pp. 731-751; J.-M. Yepes, "Les problèmes fondamentaux du droit des gens en Amérique", 47 RCADI (1934) p. 8; Alejandro Álvarez, Exposé de motifs et Déclaration des grands principes du Droit international moderne, 2nd. ed., Paris, Éds. Internationales, 1938, pp. 8-9, 13-23 and 51; C. Saavedra Lamas, Por la Paz de las Américas, Buenos Aires, M. Gleizer Ed., 1937, pp. 69-70, 125-126 and 393; Alberto Ulloa, Derecho Internacional Público, vol. I, 2nd. ed., Lima, Impr. Torres Aguirre, 1939, pp. 4, 20-21, 29-30, 34, 60, 62 and 74; Alejandro Álvarez, La Reconstrucción del Derecho de Gentes – El Nuevo Orden y la Renovación Social, Santiago de Chile, Ed. Nascimento, 1944, pp. 19-25 and 86-87; Ph. Azevedo, A Justiça Internacional, Rio de Janeiro, MRE, 1949, pp. 24-26, and cf. pp. 9-10; J.-C. Puig, Les principes du Droit international public américain, Paris, Pedone, 1954, p. 39; H. Accioly, Tratado de Direito Internacional Público, 2nd. ed., vol. I, Rio de Janeiro, IBGE, 1956, pp. 32-40; Alejandro Álvarez, El Nuevo Derecho Internacional en Sus Relaciones con la Vida Actual de los Pueblos, Santiago, Edit. Jurídica de Chile, 1961, pp. 155-157, 304 and 356-357; A. Gómez Robledo, Meditación sobre la Justicia, México, Fondo de Cultura Económica, 1963, p. 9; R. Fernandes, Nonagésimo Aniversário – Conferencias e Trabalhos Esparsos, vol. I, Rio de Janeiro, M.R.E., 1967, pp. 174-175; A.A. Conil Paz, Historia de la Doctrina Drago, Buenos Aires, Abeledo-Perrot, 1975, pp. 125-131; E. Jiménez de Aréchaga, "International Law in the Past Third of a Century", 159 RCADI (1978) pp. 87 and 111-113; L.A. Podestá Costa and J.M. Ruda, Derecho Internacional Público, 5th. rev.ed., vol. I, Buenos Aires, Tip. Ed. Argentina, 1979, pp. 17-18 and 119-139; E. Jiménez de Aréchaga, El Derecho Internacional Contemporáneo, Madrid, Ed. Tecnos, 1980, pp. 107-141; A.A. Cançado Trindade, Princípios do Direito Internacional Contemporâneo, Brasília, Edit. University of Brasília, 1981, pp. 1-102 and 244-248; Jorge Castañeda, Obras Completas – vol. I: Naciones Unidas, Mexico, S.R.E./El Colegio de Mexico, 1995, pp. 63-65, 113-125, 459, 509-510, 515, 527-543 and 565-586; [Various Authors,] Andrés Bello y el Derecho (Colloquy of Santiago de Chile of July 1981), Santiago, Edit. Jurídica de Chile, 1982, pp. 41-49 and 63-76; D. Uribe Vargas, La Paz es una Trégua – Solución Pacífica de Conflictos Internacionales, 3rd. ed., Bogotá, Universidad Nacional de Colombia, 1999, p. 109; A.A. Cançado Trindade, O Direito International em um Mundo em Transformação, Rio de Janeiro, Edit. Renovar, 2002, pp. 91-140 and 863-889 and 1039-1071. [Back]
13. Lafayette Rodrigues Pereira, Princípios de Direito Internacional, vols. I-II, Rio de Janeiro, J. Ribeiro dos Santos Ed., 1902-1903, pp. 1 et seq.; A.S. de Bustamante y Sirvén, La II Conferencia de la Paz Reunida en La Haya en 1907, vol. II, Madrid, Libr. Gen. de V. Suárez, 1908, pp. 133, 137-141, 145-147, 157-159, and cf. also vol. I, pp. 43, 80-81 and 96; Epitacio Pessoa, Projecto de Código de Direito Internacional Público, Rio de Janeiro, Imprensa Nacional, 1911, pp. 5-323; F. -J. Urrutia, "La codification du droit international en Amérique", 22 RCADI (1928) pp. 113, 116-117 and 162-163; G. Guerrero, La codification du droit international, Paris, Pedone, 1930, pp. 11, 13, 16, 152, 182 and 175; J.-M. Yepes, "La contribution de l'Amérique Latine au développement du Droit international public et privé", 32 RCADI (1930) pp. 714-730 and 753-756; Alejandro Álvarez, "Méthodes de la codification du droit international public – Rapport", in Annuaire de I'Institut de Droit International (1947) pp. 38, 46-47, 50-51, 54, 64 and 69; J.-M. Yepes, Del Congreso de Panama a la Conferencia de Caracas (1826-1954), Caracas, M.R.E., 1955, pp. 143, 177-178, 193 and 203-208; R.J. Alfaro, "The Rights and Duties of States", 97 RCADI (1959) pp. 138-139, 145-154, 159 and 167-172 ; G.E. do Nascimento e Silva, "A Codificação do Direito Internacional", 55/60 Boletim da Sociedade Brasileira de Direito International (1972-1974) pp. 83-84 and 103; R.P. Anand, "Sovereign Equality of States in International Law", 197 RCADI (1986) pp. 73-74; A.A. Cançado Trindade, "The Presence and Participation of Latin America at the II Hague Peace Conference of 1907", in Actualité de la Conférence de La Haye de 1907, II Conférence de la Paix (Colloque du centenaire, 2007 – ed. Yves Daudet), La Haye/Leiden, Académie de Droit International de La Haye / Nijhoff, 2008, pp. 51-84. [Back]
14. Paras. 18 and 12, respectively. [Back]
16. Paras. 10-23 and 25-27. [Back]
17. On human conscience – the universal juridical conscience – as the ultimate material source of international law, cf. A.A. Cançado Trindade, International Law for Humankind..., op. cit supra n. (11), ch. VI, pp. 139-161. [Back]
18. M. Bourquin, "Stabilité et mouvement dans l'ordre juridique international", 64 Recueil des Cours de l'Académie de Droit International de La Haye (1938) p. 472. [Back]
19. Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, London, Stevens, 1953, p. 291. [Back]
20. Cf. my Separate Opinions in the two Orders of joinder of the ICJ in the aforementioned cases of Certain Activities and Construction of a Road, para. 19. [Back]
21. It further insisted on "equality of access" to justice (paras. 37, 39, 43 and 48), on "the concept of equality before courts and tribunals" (paras. 38 and 40), and on the guarantee of "equal access and equality of arms" (para. 39). [Back]
22. A.A. Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium, op. cit. supra n. (11), ch. III, pp. 85-121, esp. pp. 90-92. [Back]
23. Cf. R. Cordova, "El Tratado Americano de Soluciones Pacíficas – Pacto de Bogotá", 1 Anuario Jurídico Interamericano –Pan American Union (1948) pp. 11-15 and 17. [Back]
24. Ibid., p. 11 – "The clear aim of the whole system created in [the Pact of] Bogotá is that of securing that no conflict nor any controversy susceptible of putting in risk the peace of America, is to remain without peaceful settlement. To that end, the Pact generalized, in a collective engagement, the compulsory jurisdiction of the International Court of Justice". [My own translation]. [Back]
25. J.M. Yepes, "El Tratado Americano de Soluciones Pacíficas (Pacto de Bogotá)", 9 Universitas – Pontificia Universidad Católica Javeniana (1955) pp. 23-25 and 40. [Back]
26. Ibid., pp. 34 and 36. [Back]
27. Starting with the Conference (Congreso Anfictiónico) of Panama of 1826, followed by the Conferences (with small groups of States) of Lima (1847-1848), Santiago de Chile (1856), Lima (1864-1865 and 1877-1880) and Montevideo (1888-1889). [Back]
28. Starting with the Conference of Washington (1889), followed by the International Conferences of American States of Mexico (1901-1902), Rio de Janeiro (1906), Buenos Aires (1910), Santiago de Chile (1923), Havana (1928), Montevideo (1933), Lima (1938), and Bogotá (1948, wherein the OAS Charter and the Pact of Bogotá were adopted, initiating the era of the OAS). [Back]
29. For an account and examination of those historical antecedents, cf. F.V. García-Amador (coord.), Sistema Interamericano a través de Tratados, Convenciones y Otros Documentos, vol. I: Asuntos Jurídico-Políticos, Washington D.C., OAS General Secretariat, 1981, pp. 1-67; A.A. Cançado Trindade, "The Presence and Participation of Latin America at the II Hague Peace Conference of 1907", in Actualité de la Conférence de La Haye de 1907, II Conférence de la Paix (Colloque de 2007) (ed. Y. Daudet), The Hague/Leiden, The Hague Academy of International Law/Nijhoff, 2008, pp. 51-84; H. Gros Espiell, "La doctrine du Droit international en Amérique Latine avant la Première Conférence Panaméricaine (Washington, 1889)", 3 Journal of the History of International Law/Revue d'histoire du droit international (2001) pp. 1-17. [Back]
30. Ibid., pp. 24-25 – "Until the meeting of the IX [International American ] Conference [(Bogotá, 1948)] there did not exist in America what we could call the statute of the pax americana. There was only a multitude of conventions which regulated in a fragmented way the distinct means of peaceful settlement (...) Hence the necessity (...) to elaborate one sole instrument which (...) would coordinate the whole matter so as to render it a harmonious corpus, as substantive as well as procedural level. One may say that the Pact of Bogotá has achieved that aim. One sole treaty, well structured, like this one, which foresees all possible cases of conflicts among the American States and which stipulates in an ineluctable way the compulsory peaceful settlement of all controversies, implies undoubtedly a real progress of the American International Law. (...)
(...) We refer especially (...) to the provision which confers, ipso facto and without the need of any special agreement, compulsory jurisdiction to the International Court of Justice for all disputes of a juridical nature among the signatory States" [My own translation]. [Back]
31. W. Sanders, "The Organization of American States – Summary of the Conclusions of the Ninth International Conference of American States (Bogotá, Colombia, March 30-May 2, 1948)", 442 International Conciliation (June 1948) p. 400. [Back]
32. Ch.G. Fenwick, "The Pact of Bogotá and Other Juridical Decisions of the Ninth Conference", 82 Bulletin of the Pan American Union (August 1948) n. 8, pp. 424-425. [Back]
33. Cf., for a general study, J.M. Yepes, Del Congreso de Panamá a la Conferencia de Caracas (1826-1954), Caracas, [Ed. Concurso M.R.E. de Venezuela], 1955, pp. 29-208. [Back]
34. Cf. Ch.G. Fenwick, "The Revision of the Pact of Bogotá", 48 American Journal of International Law (1954) pp. 123-126. It was pointed out, inter alia, that, e.g., Bolivia and Ecuador had both made reservations to Article VI of the Pact (excluding its application to matters already settled by treaty), bearing in mind "treaties which they believe were entered into under compulsion"; ibid., p. 124. [Back]
35. Cf. Comité Jurídico Interamericano, "Dictamen", in: 10 Recomendaciones e Informes (1967-1973) pp. 402-403. [Back]
36. Ibid., pp. 402-403. [Back]
37. Ibid., p. 406 – Subsequently, in the mid-seventies, the OAS Permanent Council took note that no recommendations had been presented of reforms of the Pact of Bogotá; cf. OEA/Consejo Permanente, doc. OEA/Ser.G-CP/CG-628/75, of 21.11.1975, p. XI. [Back]
38. Cf. Comité Jurídico Interamericano, 16 Informes y Recomendaciones (1984) p. 59; Comité Jurídico Interamericano, 17 Informes y Recomendaciones (1985) pp. 62-63. [Back]
39. Listed in Article LVIII of the Pact itself; cf. "Dictamen", in: Comité Jurídico Interamericano, 17 Informes y Recomendaciones (1985), pp. 65 and 95. [Back]
40. In ibid., pp. 66, 74-75 and 81. [Back]
42. Cf. OAS, doc. AG/doc.2030/86, pp. 1-19; OAS/Permanent Council, doc. OEA/Ser.G-CP/CAJP-662/87, of 03.05.1987, pp. 1-5; OAS/Permanent Council, doc. OEA/Ser.G-CP/CAJP-666/87, of 11.05.1987, pp. 1-6. [Back]
43. Cf. doc. OEA/Ser.G-CP/CAJP-666/87, cit. supra n. (42), of 11.05.1987, p. 3. [Back]
44. Cf. OEA/Consejo Permanente, doc. OEA/Ser.G-CP/doc.1560/85-part II, of 09.04.1985, pp. 13-23. [Back]
45. Cf. OEA/Consejo Permanente, doc. OEA/Ser.G-CP/CAJP-676/87, of 02.06.1987, pp. 13-15, and cf. pp. 1-12. [Back]
46. Cf. G. Leoro F., "La Reforma del Tratado Americano de Soluciones Pacíficas o Pacto de Bogotá, in: OEA, Anuario Jurídico Interamericano (1981) pp. 43 and 77-79. [Back]
47. Cf. A. Herrarte, "Solución Pacífica de las Controversias en el Sistema Interamericano", in: OEA, VI Curso de Derecho International Organizado por el Comité Jurídico Interamericano (1979) pp. 220 and 225; E. Valencia-Ospina, "The Role of the International Court of Justice in the Pact of Bogotá", in Liber Amicorum In Memoriam of Judge J.M. Ruda (eds. C.A. Armas Barea, J. Barberis et alii), The Hague, Kluwer, 2000, pp. 296-297, 301 and 305-306; A. Bazán Jiménez, "Tratado Americano de Soluciones Pacíficas – Pacto de Bogotá", 57 Revista Peruana de Derecho Internacional (2007) pp. 21, 36 and 47-48. [Back]
48. E. Jiménez de Aréchaga, "The Compulsory Jurisdiction of the International Court of Justice under the Pact of Bogotá and the Optional Clause", in International Law at a Time of Perplexity – Essays in Honour of S. Rosenne (eds. Y. Dinstein and M. Tabory), Dordrecht, Nijhoff, 1989, pp. 356-357. [Back]
49. Currently (September 2015): Bolivia, Brazil, Chile, Costa Rica, Dominican Republic, Ecuador, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay. (Denunciations: Colombia, El Salvador). [Back]
50. Cf. A.A. Cançado Trindade, "Regional Arrangements and Conflict Resolution in Latin America", in Conflict Resolution: New Approaches and Methods, Paris, UNESCO, 2000, pp. 141-162; A.A. Cançado Trindade, "Mécanismes de règlement pacifique des différends en Amérique Centrale: de Contadora à Esquipulas-II", 33 Annuaire français de Droit international (1987) pp. 798-822. [Back]
51. Such as the (merged) cases of Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica versus Nicaragua), and of Construction of a Road in Costa Rica along the San Juan River (Nicaragua versus Costa Rica), – as well as the cases of Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica versus Nicaragua), Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua versus Colombia), Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua versus Colombia). [Back]
52. For a recent study, cf. A.A. Cançado Trindade, "Towards Compulsory Jurisdiction: Contemporary International Tribunals and Developments in the International Rule of Law – Part I", in XXXVII Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano – 2010, Washington D.C., OAS General Secretariat, 2011, pp. 233-259; A.A. Cançado Trindade, "Towards Compulsory Jurisdiction: Contemporary International Tribunals and Developments in the International Rule of Law – Part II", in XXXVIII Curso de Derecho International Organizado por el Comite Jurídico Interamericano – 2011, Washington D.C., OAS General Secretariat, 2012, pp. 285-366. [Back]
53. Cf., e.g., R. Casado Raigón, "La Sentencia de la CIJ de 20 de Diciembre de 1988 (Competencia y Admisibilidad de la Demanda) en el Asunto Relativo a Acciones Armadas Fronterizas y Transfronterizas (Nicaragua c. Honduras)", 41 Revista Española de Derecho International (1989) pp. 402-405 and 407; E. Orihuela Calatayud, "El Pacto de Bogotá y la Corte Internacional de Justicia", 42 Revista Española de Derecho International (1990) pp. 430-431, 433, 436 and 438. [Back]
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