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World Court Digest

III. The International Court of Justice
2.5. Jurisdiction on the Basis of Treaties
2.5.3. Specific Treaties

¤ Border and Transborder Armed Actions
Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1988, p. 69

[pp. 84-85] The first interpretation advanced by Honduras - that Article XXXI 1 must be supplemented by a declaration - is incompatible with the actual terms of the Article. In that text, the parties "declare that they recognize" the Court's jurisdiction "as compulsory ipso facto" in the cases there enumerated. Article XXXI does not subject that recognition to the making of a new declaration to be deposited with the United Nations Secretary-General in accordance with Article 36, paragraphs 2 and 4, of the Statute. It is drafted in the present indicative tense, and thus of itself constitutes acceptance of the Court's jurisdiction.
Turning to the second Honduran interpretation, the Court may observe at the outset that two possible readings of the relationship between Article XXXI and the Statute have been proposed by the Parties. That Article has been seen either as a treaty provision conferring jurisdiction upon the Court in accordance with Article 36, paragraph 1, of the Statute, or as a collective declaration of acceptance of compulsory jurisdiction under paragraph 2 of that same Article.
Honduras has advanced the latter reading. Nicaragua, after asserting in 1984, in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), that Article XXXI constituted a declaration under Article 36, paragraph 2, of the Statute, has argued in the present case that Article XXXI falls under Article 36, paragraph 1, and therefore confers jurisdiction on the Court on a conventional basis.
There is however no need to pursue this argument. Even if the Honduran reading of Article XXXI be adopted, and the Article be regarded as a collective declaration of acceptance of compulsory jurisdiction made in accordance with Article 36, paragraph 2, it should be observed that that declaration was incorporated in the Pact of Bogotá as Article XXXI. Accordingly, it can only be modified in accordance with the rules provided for in the Pact itself. Article XXXI nowhere envisages that the undertaking entered into by the parties to the Pact might be amended by means of a unilateral declaration made subsequently under the Statute, and the reference to Article 36, paragraph 2, of the Statute is insufficient in itself to have that effect.
The fact that the Pact defines with precision the obligations of the parties lends particular significance to the absence of any indication of that kind. The commitment in Article XXXI applies ratione materiae to the disputes enumerated in that text; it relates ratione personae to the American States parties to the Pact; it remains valid ratione temporis for as long as that instrument itself remains in force between those States.
Moreover, some provisions of the Treaty restrict the scope of the parties' commitment. Article V specifies that procedures under the Pact "may not be applied to matters which, by their nature, are within the domestic jurisdiction of the State". Article VI provides that they will likewise not apply
"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".

Similarly, Article VII lays down specific rules relating to diplomatic protection.
Finally, Article LV of the Pact of Bogotá enables the parties to make reservations to that instrument which "shall, with respect to the State that makes them, apply to all signatory States on the basis of reciprocity". In the absence of special procedural provisions those reservations may, in accordance with the rules of general international law on the point as codified by the 1969 Vienna Convention on the Law of Treaties, be made only at the time of signature or ratification of the Pact or at the time of adhesion to that instrument.

These provisions together indicate that the commitment in Article XXXI can only be limited by means of reservations to the Pact itself. It is an autonomous commitment, independent of any other which the parties may have undertaken or may undertake by depositing with the United Nations Secretary-General a declaration of acceptance of compulsory jurisdiction under Article 36, paragraphs 2 and 4, of the Statute. Not only does Article XXXI not require any such declaration, but also when such a declaration is made, it has no effect on the commitment resulting from that Article.

Neither the first nor the second interpretation of the text advanced by Honduras is compatible with the actual terms of the Pact.

[p. 88] Under these circumstances, the Court has to conclude that the commitment in Article XXXI of the Pact is independent of such declarations of acceptance of compulsory jurisdiction as may have been made under Article 36, paragraph 2, of the Statute and deposited with the United Nations Secretary-General pursuant to paragraph 4 of that same Article. Consequently, it is not necessary to decide whether the 1986 Declaration of Honduras is opposable to Nicaragua in this case; it cannot in any event restrict the commitment which Honduras entered into by virtue of Article XXXI. The Honduran argument as to the effect of the reservation to its 1986 Declaration on its commitment under Article XXXI of the Pact therefore cannot be accepted.

[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" 2 (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.


Article XXXI of the Pact of Bogotá, upon which Nicaragua relies to found juris-diction, provides 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 rela-tion 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 inter- national obligation."
2 "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)