I. | Substantive International Law - First Part |
7. | LAW OF TREATIES |
7.8. | Interpretation |
¤
Border and Transborder Armed Actions
(Nicaragua/Honduras),
Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1988, p. 69
[pp. 85-86] Further confirmation of the Court's reading of Article
XXXI 1 is to be found in the travaux préparatoires. In this
case these must of course be resorted to only with caution, as not all the
stages of the drafting of the texts at the Bogotá Conference were the
subject of detailed records. The proceedings of the Conference were however
published, in accordance with Article 47 of the Regulations of the Conference,
in Spanish, and certain recorded discussions of Committee III of the Conference
throw light particularly upon the contemporary conception of'the relationship
between Article XXXI and declarations under Article 36 of the Statute.
The text which was to become Article XXXI was discussed at the meeting of
Committee III held on 27 April 1948. The representative of the United States
reminded the meeting that his country had previously, under Article 36,
paragraph 2, of the Statute, made a declaration of acceptance of compulsory
jurisdiction that included reservations; he made it clear that the United States
intended to maintain those reservations in relation to the application of the
Pact of Bogotá. The representative of Mexico replied that States which
wished to maintain such reservations in their relations with the other parties
to the Pact would have to reformulate them as reservations to the Pact, under
Article LV. The representatives of Colombia and Ecuador, members of the drafting
group, confirmed that interpretation. The representative of Peru asked whether
an additional Article should not be added to the draft in order to specify that
adhesion to the treaty would imply, as between the parties to it, the automatic
removal of any reservations to declarations of acceptance of compulsory
jurisdiction. The majority of Committee III considered, however, that such an
Article was not necessary and the representative of Peru went on to say, after
the vote, that "we should place on record what has been said here, to the
effect that it is understood that adhesion is unconditional and that
reservations are automatically removed" 2 (translation by the Registry).
[pp. 88-90] The second objection of Honduras to jurisdiction is
based on Article XXXII of the Pact of Bogotá, which reads as follows:
"When the conciliation procedure previously established in the present
Treaty or by agreement of the parties does not lead to a solution, and the said
parties have not agreed upon an arbitral procedure, either of them shall be
entitled to have recourse to the International Court of Justice in the manner
prescribed in Article 40 of the Statute thereof. The Court shall have compulsory
jurisdiction in accordance with Article 36, paragraph 1, of the said Statute."
It is the contention of Honduras that Articles XXXI and XXXII must be read
together. The first is said to define the extent of the Court's jurisdiction and
the second to determine the conditions under which the Court may be seised.
According to Honduras it follows that the Court could only be seised under
Article XXXI if, in accordance with Article XXXII, there had been a prior
recourse to conciliation and lack of agreement to arbitrate, which is not the
situation in the present case.
Nicaragua on the other hand contends that Article XXXI and Article XXXII are
two autonomous provisions, each of which confers jurisdiction upon the Court in
the cases for which it provides. It claims that Article XXXI covers all
juridical disputes which, before the conclusion of the Pact, would have been
subject to arbitration under the General Treaty of Inter-American Arbitration of
5 January 1929; and that Article XXXII relates to disputes, whatever their
nature, previously in the domain of conciliation under the General Convention of
Inter-American Conciliation of the same date. It maintains accordingly that the
Court can be seised, under Article XXXI, in the cases covered by that text,
without there being any requirement to ascertain whether the procedural
conditions laid down, in other cases, by Article XXXII have or have not been
satisfied.
Honduras's interpretation of Article XXXII runs counter to the terms of that
Article. Article XXXII makes no reference to Article XXXI; under that text the
parties have, in general terms, an entitlement to have recourse to the Court in
cases where there has been an unsuccessful conciliation.
It is true that one qualification of this observation is required, with
regard to the French text of Article XXXII, which provides that, in the
circumstances there contemplated, the party has "le droit de porter la
question devant la Cour". That expression might be thought to refer
back to the question which might have been the subject of the dispute referred
to the Court under Article XXXI. It should, however, be observed that the text
uses the word "question", which leaves room for uncertainty,
rather than the word "différend (dispute)", used in
Article XXXI, which would have been perfectly clear. Moreover, the Spanish,
English and Portuguese versions speak, in general terms, of an entitlement to
have recourse to the Court and do not justify the conclusion that there is a
link between Article XXXI and Article XXXII.
Moreover, Article XXXII, unlike Article XXXI, refers expressly to the
jurisdiction which the Court has under Article 36, paragraph 1, of the Statute.
That reference would be difficult to understand if, as Honduras contends, the
sole purpose of Article XXXII were to specify the procedural conditions for
bringing before the Court disputes for which jurisdiction had already been
conferred upon it by virtue of the declaration made in Article XXXI, pursuant to
Article 36, paragraph 2.
It is, moreover, quite clear from the Pact that the purpose of the American
States in drafting it was to reinforce their mutual commitments with regard to
judicial settlement. This is also confirmed by the travaux préparatoires:
the discussion at the meeting of Committee III of the Conference held on 27
April 1948 has already been referred to in paragraph 37 above. At that meeting,
furthermore, the delegate of Colombia explained to the Committee the general
lines of the system proposed by the Sub-Committee which had prepared the draft;
the Sub-Committee took the position "that the principal procedure for the
peaceful settlement of conflicts between the American States had to be judicial
procedure before the International Court of Justice" 3 (translation
by the Registry). Honduras's interpretation would however imply that the
commitment, at first sight firm and unconditional, set forth in Article XXXI
would, in fact, be emptied of all content if, for any reason, the dispute were
not subjected to prior conciliation. Such a solution would be clearly contrary
to both the object and the purpose of the Pact.
In short, Articles XXXI and XXXII provide for two distinct ways by which
access may be had to the Court. The first relates to cases in which the Court
can be seised directly and the second to those in which the parties initially
resort to conciliation.
In the present case, Nicaragua has relied upon Article XXXI, not Article
XXXII. It is accordingly not pertinent whether the dispute submitted to the
Court has previously been the subject of an attempted conciliation, nor what
interpretation is given to Article XXXII in other respects, in particular as
regards the nature and the subject-matter of the disputes to which that text
applies. It is sufficient for the Court to find that the second objection put
forward by Honduras is based upon an incorrect interpretation of that Article
and, for that reason, cannot be accepted.
Article XXXI of the Pact of Bogotá thus confers jurisdiction upon the
Court to entertain the dispute submitted to it. For that reason, the Court does
not need to consider whether it might have jurisdiction by virtue of the
declarations of acceptance of compulsory jurisdiction by Nicaragua and Honduras
set out in paragraphs 23 to 25 above.
[pp. 94-95] Before proceeding further, the Court notes that the
Parties have drawn attention to a discrepancy between the four texts of Article
II of the Pact (English, French, Portuguese and Spanish). In the French text,
what is required is that, "de l'avis de l'une des parties", i.e., "in
the opinion of one of the parties", the dispute should not be susceptible
of settlement by negotiation. In the English, Portuguese and Spanish texts, the
corresponding phrase is "in the opinion of the parties", or the
equivalent in the other two languages. For reasons which will appear, the
Court's reasoning does not require the resolution of the problem posed by this
textual discrepancy, and it will therefore not rehearse all the arguments that
have been put forward by the Parties to explain it or to justify the preferring
of one version to another.
For the purpose of determining the application in this case of Article II of
the Pact, the Court will proceed on the hypothesis that the stricter
interpretation should be used, i.e., that it would be necessary to consider
whether the "opinion" of both Parties was that it was not possible to
settle the dispute by negotiation. For this purpose the Court does not consider
that it is bound by the mere assertion of the one Party or the other that its
opinion is to a particular effect: it must, in the exercise of its judicial
function, be free to make its own determination of that question on the basis of
such evidence as is available to it.
1 | Article XXXI of the Pact of Bogotá. |
2 | "Pero deben constar en actas las palabras pronunciadas aquí,
acerca de que se entiende que es adhesión incondicional y que quedan
removidas, automáticamente, las reservas." (Novena Conferencia
Internacional Americana, Actas y Documentos, Vol. IV, p. 167). |
3 | "La Subcomisión estimó que el procedimiento principal
para el arreglo pacífíco de los conflictos entre los Estados
Americanos ha de ser el procedimiento judicial ante la Corte Internacional de
Justicia; ..." (Novena Conferencia Internacional Americana, Actas y
Documentos, Vol. IV, p. 156). |