| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.5. | Jurisdiction on the Basis of Treaties |
| 2.5.3. | Specific Treaties |
¤
Border and Transborder Armed Actions
Nicaragua/Honduras),
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.
| 1 |
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) |
