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The Latin American Contribution to International Adjudication: The Case of the International Court of Justice

Published online by Cambridge University Press:  21 May 2009

Juan José Quintana
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Abstract

‘Si les découvreurs et les colonisateurs de l'Aménque méritent une reconnaissance éternelle pour avoir doté l'univers d'un monde nouveau, certes, les hommes qui firent naître ce monde à l'existence internationale et qui par là rétalirent l'équilibre disparu dans l'ancien monde, suivant la phrase de Canning, ont aussi le droit d'être placés au premier rang parmi ceux dont l'oeuvre bienfaisante est destinée à retentir à travers les siécles. Washington, Bolivar, Miranda, Narino, Santander, San Martin, O'Higgins, Hidalgo, Artigas, autant de noms immortels qui resteront attachés, non seulement à 1'histoire des origines des républiques amÉricaines, mais aussi, et à un titre égal, à l'histoire de l'évolution politique de I'humanité vers la justice et vers le droit.’

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Articles
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Netherlands International Law Review , Volume 39 , Issue 1 , May 1992 , pp. 127 - 154
Copyright
Copyright © T.M.C. Asser Press 1992

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References

1. Scott, J. Brown, El Origen Español del Derecho International Moderno (1928) pp.72–73;Google ScholarSerra, A. Truyoly, ‘L'espansion de la société internationale aux XIXe et XXe siécles’, RCADI (1965–III) pp. 112–126, especially p. 118.Google Scholar See also ICJ Rep. (1986) p. 565, paras. 20 and 21.Google Scholar

2. Fernandes, R., ‘L'Amérique du Sud et la Société des Nations’, in L'origine et l'oeuvre de la Société des Nations (1924) T. II, p. 137.Google Scholar

3. It should be noted, for instance, that the first edition of Bello's Principles of the Law of Nations (Principios del Derecho de Jentes) came out in Santiago in 1832. Thanks to this contribution, Bello is considered to be the first international lawyer who wrote in Spanish. (See Carmona, G. Lagos, ‘Andrés Bello, el Maestro del Derecho Internacional’, in Homenaje a Don Andrés Bello (1982) pp. 735–940, especially pp. 780–785;Google ScholarLachs, M., The Teacher in International Law (1987) p. 85 et seq.).Google Scholar

4. It is to be regretted that the historical importance of the Congress of Panama has practically been overlooked outside South America. As a partial remedy to this, a resolution entitled ‘Tribute to the Amphictionic Congress of Panama’ was included in the Final Act of the Third United Nations Conference on the Law of the Sea (Annex V). (See Reyes, A. De la Peña y, El Congreso de Panamá y Algunos Otros Intentosde Unión Hispanoamericana (1926);Google ScholarPacheco, Q.J., El Congreso Anfictiónico de Panamá y la Política Internacional de los Estados Unidos (1971). See also the bibliography mentioned in n. 5, infra).Google Scholar

5. See Guani, A., ‘La solidarité international dans l'Amerique Latine’, RCADI (1925-III) pp. 323–333;Google ScholarUrrutia, F.J., ‘Lacodification de droit international en Amérique’, RCADI (1928-II)pp. 141–153;Google ScholarMatos, J., ‘L'Amérique et la Société des Nations’, RCADI (1929-III) pp. 5–104;Google ScholarUrrutia, F.J., ‘Le Continent Américain et le droit international (1928);Google ScholarYepes, J.M., ‘La contribution de l'Amérique Latine au dévelopment du droit international public et privé’, RCADI (1930-II) pp. 757–775;Google ScholarFernandes, , loc. cit. n. 2, at pp. 137–152;Google ScholarAmador, F. Garcia, The Inter-American System. Treaties, Conventions and Other Documents (1983) Vol. 1, Part I, pp. 39–46.Google Scholar

6. The topic of judicial settlement of disputes from a regional perspective deserves greater discussion than the scope of this paper allows. In such a comment mention should be made of the several attempts to create an international tribunal carried out within the Interamerican System, and of other specialized jurisdictions of a regional nature, such as the Inter-American Court of Human Rights or the Court of Justice of the Cartagena Agreement.

A good introduction to this subject is contained in the report on regional jurisdictions presented by Garcia-Amador, F. to the Symposium held at the Max Planck Institute in 1973, published in the volume Judicial Settlement of International Disputes (1974) pp. 83–98.Google Scholar

7. The present chapter focuses on the role of the Latin American States at the San Francisco Conference, in as far as the judicial organization referred to in Chapter VII of the Dumbarton Oaks proposals is concerned. It will not refer specifically to the drafting process of the Statute of the previous Court, which took place within the framework of the activities of the League of Nations. (See supra n. 5)

8. Rosenne, S., The Law and Practice of the ICJ, 2nd. edn. (1985) p. 26.Google Scholar

9. These documents were put before the Committee of Jurists which produced the draft Statute of the ICJ. See Inter-American Juridical Committee, Recommendations and Reports, Official Documents 1942–1944 (1945) pp. 29 and 137;Google ScholarUNCIO VoL 14, p. 450.Google Scholar

10. UNCIO Vol. 14, op. cit n. 9, pp. 146–147, 152 and 304.Google Scholar

11. The Sub-committee was composed of five members, among them Brazil, Cuba, Mexico and Venezuela (p. 286).

12. For a record of these countries' position on the question of jurisdiction, see UNCIO Vol. 13, pp. 246–250.Google Scholar A Venezuelan amendment which contemplated a compromisory solution similar to that which Egypt had put forward at the Committee of Jurists was withdrawn before the discussions on this point had begun (pp. 224 and 489–490). In Subcommittee D another catch-all proposal by New Zealand was considered; however, as is well-known, the solution eventually adopted consisted of retaining the system of the optional Clause and adding minor changes to it (UNCIO Vol. 13, pp. 557–561).Google Scholar

13. Ibid. p. 392. For the text of these declarations, see ibid pp. 252–255.

14. UNCIO Vol. 14, p. 186, and Vol. 13, p. 468.Google Scholar

15. UNCIO Vol. 13, pp. 164, 284 and 493.Google Scholar

16. Ibid. p. 392. Another aspect referring to Art. 38 was raised by Colombia: the question of the order of priority between the sources of international law listed therein. However, the Colombian delegation refrained from submitting a formal amendment on this point, declaring itself satisfied with the recording of its understanding of the question (ibid. pp. 285 and 287).

17. Ibid. pp. 297-298 and 509. It is noteworthy that the very first time in which Art 94 of the Charter was invoked was done by yet another Latin American State, in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States). See Gill, , infra n. 49 at p. 286.Google Scholar

18. UNCIO Vol. 13, pp. 296–297 and 502.Google Scholar

19. See, respectively: UNCIO Vol. 14, pp. 77 and 78;Google Scholaribid. pp. 76 and 363; Vol 13, p. 180; Vol 14, p. 178; Vol 13, pp. 217, 221 and 482; Vol. 14, p. 171.

20. The principle that ‘the representation of the civilization and of the principal legal systems of the world’ should be assured, as embodied in Art. 9 of the Statute, has been translated into practice by the fact that two of the fifteen vacancies at the bench correspond to the Latin American group. This has not always been the case, and discussions have taken place on this aspect both at the Assembly of the League and at the United Nations General Assembly. In 1920, far instance, Colombia proposed, unsuccessfully, that the vacancies in the Court should be distributed between the different continental units, In 1930 and once again in 1937, on the occasion of the general elections for Judges, several Latin American nations raised the question of the need for an increase in their participation in the composition of the Court (See Hudson, M.O., The Permanent Court of International Justice 1920–1942. A Treatise (1943) pp. 251 and 257).Google Scholar

At the statistical level, it has been rightly pointed out that the ratio of the Latin American representation at the Court has decreased since 1946, from four to two Judges, as is currently the case. (Rosenne, S., ‘The Composition of the Court’, in Gross, L., ed., The Future of the ICJ (1976) Vol. 1, pp. 378–387, especially at pp. 381–382;Google ScholarMcWhinney, E., Judicial Settlemet of International Disputes (1991) pp. 103 and 108).Google Scholar

21. The following are the learned Latin American and Caribbean jurists who have been members of the two Courts:

PCIJ:

Antonio Sanchez de Bustamante (Cuba) 1922–1945

Epitacio da SilvaPessoa* (Brazil) 1923–1930

José G. Guerrero (El Salvador) 1930–1945

Francisco J. Urrutia (Colombia) 1930–1942

*Elected to replace the late Judge Ruy Barbosa, who died before commencing his judicial tasks.ICJ:

Ph. Azevedo (Brazil) 1946–1951

Isidro Fabela (Mexico) 1946–1952

José G. Guerrero (El Salvador) 1946–1958

L.F. Carneiro (Brazil) 1951–1955

R. Cordoba (Mexico) 1955–1964

Lucio M. Moreno-Quintana (Argentina) 1955–1964

4R. J. Alfaro (Panama) 1959–1964

Alejandro Alvarez (Chile) 1946–1964

José Luis Bustamante y Rivero (Peru) 1961–1970

L. Padilla Nervo (Mexico) 1964–1973

Eduardo Jiménez de Aréchaga (Uruguay) 1970–1979

José Maria Ruda (Argentina) 1973–1991

José Sette-Camara (Brazil) 1979–1988

Mohamed Shahabbuddeen (Guyana) 1988-to date

Andrés Aguilar Mawdsley (Venezuela) 1991-to date

(Hudson, , op. cit. n. 20, at pp. 259–264;Google Scholar ICJ Yearbook (1989–1990) pp. 7–11).

22. In the creation of the Interamerican System and the drafting of its basic instruments only three Caribbean countries participated: Cuba, the Dominican Republic and Haiti. The countries from this area which followed suit were Barbados, Guyana, Jamaica and Trinidad and Tobago, during the late sixties and early seventies.

Today, a third of all the members of the Organization of American States come from the Caribbean Region. See in general Garcia Amador, op. cit n. 5, at pp. 102–113.

23. However, it must not be forgotten that most of the English-speaking countries from the Caribbean region belong to the common law system and not to the continental (civil) law system which is a common feature of the Latin American countries, hi the context of the elections to fill the vacancies at the ICJ, McWhinney points out that since the 1966 regular election the emphasis has been on the geographical region to which the candidate belongs, rather than on the legal system in which he has been trained (see McWhinney, , op. cit. n. 20, at p. 104).Google Scholar

On the other hand, it must be noted that, according to Rosenne, the traditional dichotomy between the Roman and Anglo-Saxon systems has been overcome in a part of the Western Hemisphere, with the emergence of an independent legal culture in Latin America, ‘… which have made far reaching contributions to international law.’ (Rosenne, , loc. cit. n. 20, at p. 384).Google Scholar

For a detailed account of die 1987 election and its repercussions on the Latin American participation in the composition of the Court, see McWhinney, , op. cit n 20, at pp. 105–106.Google Scholar

24. An interesting framework for analysis which could be used in such a research is the one employed by Sicart-Bozec, M., Les juges du Tiers Monde a la Cow internationale de justice (1986).Google Scholar

25. This record is even more impressive if one takes into account that Judge Guerrero had already been President of the PCIJ. For a portrait of this learned lawyer, see 32 American Bar Association J. (1946) p. 342.

26. The Judges who have remained as members of the Court for the greatest number of years are: Manfred Lachs (Poland), 24 years—still a member of the Court; B. Winiarski (Poland), 21 years; A. Gros (France), 20 years; A.H. Badawi (Egypt), 19 years; L Forster (Senegal), 18 years; and José Maria Ruda (Argentina), 18 years. (Supra a. 21).

27. Judge Jiménez de Arechaga took part in the Drafting Committee which produced the partial amendment of 1972. His signature appears, incidentally, at the bottom of the new Rules adopted in 1978, when he held the position of President of the Court. This Uruguayan scholar is also the author of a highly enlightening paper on the first of the mentioned revisions, which is often quoted in legal literature. See de Arechaga, E. Jiménez, ‘The Amendments to the Rules of Procedure of the ICJ’, 67 AJIL(1973)pp. l–22.CrossRefGoogle Scholar See also Muguelar, A.de Saavedra, ‘El Nuevo Reglamento de la CIJ’, XXXII(l) REDI (1981)p. 120.Google Scholar

28. Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Constitution of Chamber, Order of 8 May 1987, ICJ Rep. (1987) p. 10.Google Scholar

Indeed, the very first ad hoc Chamber formed by the Court had a Latin American Judge in its original composition. In the case concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), after being duly elected as a member of die Chamber, the Argentinian Judge, J.M. Ruda, was requested by the Acting President of the Court to give way in due course to the ad hoc Judge to be chosen by Canada, according to Art 31, para. 4, of the Statute. (Order of 20 January 1982, ICJ Rep. (1982) p. 3. See also McWhinney, E., ‘Special Chambers Within The ICJ: The Preliminary, Procedural Aspect of the Gulf of Maine Case’, 12 Syracuse JIL & Com. (1985) no. l, p. 3).Google Scholar

29. This is die case concerning the Continental Shelf (Malta/Libya)—Request for Permission to Intervene by Italy, where Mr. E. Jiménez de Aréchaga (Uruguay) and Mr. Jorge Castañeda (Mexico) acted as ad hoc Judges chosen by Libya and Malta, respectively. The former also acted as an ad hoc Judge for Libya on two other occasions. Another case in which a European country appointed a Latin American lawyer as an ad hoc Judge is the famous Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), where Spain chose Mr. E.C. Armand-Ugon, also from Uruguay.

However, the inverse situation of a Latin American State party in a case before the Court appointing as an ad hoc Judge a citizen of an extra-continental country has also occurred, as in the recent cases between Nicaragua and the United States or between El Salvador and Honduras. (See ICJ Yearbook (1989–1990) pp. 12–13).

30. The election of the current Registrar, of Colombian nationality, has been interpreted as a reflection of a recent tendency to restore confidence in the Court on the part of several of the developing countries who are members of the Organization, a trend which particularly manifests itself in the increase in the number of cases brought before the Court. (Eyffinger, A., The Peace Palace—Residence for Peace, Domicile of Learning (1988) pp. 156 and 161).Google Scholar

31. The very first case introduced before the present Court by means of a Special Agreement was the Asylum (Colombia/Peru) case. The sequel to it, the Haya de la Torre case, is also one of the first instances before the Court in which the technique known as forum prorogatum was resorted to (ICJ Rep. (1950) pp. 267–269; ICJ Rep. (1951) p. 78).

32. Hudson, , op. cit. n. 20, at pp. 189–193;Google ScholarFernandes, , loc. cit. n. 2, at pp. 141–142 and 151–152;Google ScholarRosenne, , op. cit. n. 8, at pp. 364–367;Google ScholarHambro, E., ‘The Jurisdiction of the ICJ’, RCADI (1950–1951) pp. 134–137;Google ScholarWaldock, C.H.M., ‘Decline of the Optional Clause’, 32 BYIL (1955-1956) pp. 244–245;Google ScholarThirlway, H.W.A., ‘Reciprocity in the Jurisdiction of the International Court’, 15 NYIL(1984)pp. 103–105.CrossRefGoogle Scholar

33. Annuaire de L'Institut de droit international (1956), Session de Grenade, pp. 83–84 and 369–370.Google Scholar

Mr. Fernandes had been a delegate of his country to the Paris Peace Conference and had participated, as a replacement of his fellow countryman, Clovis Bevilaqua, at the meetings of the 1920 Committee of Jurists which carried out the task of drafting the Statute of the PCIJ. In fact, he was the only Latin American jurist who participated in the work of the Committee, as the Argentinian, J.M. Drago, also invited by the Council, was unable to attend.

34. Hudson, op. cit. n. 20, at p. 126.Google Scholar

35. Guani, loc. cit n. 5, at p. 328;Google ScholarUrrutia, , op. cit n. 5, p. 148;Google ScholarYepes, , loc. cit. n. 5, pp. 712–713.Google Scholar

36. In an assessment of this process which was made several years later, Waldock draws attention to the fact that the objections of the Great Powers to compulsory jurisdiction had the dual nature of being ratione materiae and ratione personae, and that the compromisory solution arrived at through the Fernandes Formula paid due concern to both aspects. (See Waldock, , loc. cit. n. 32, at p. 244).Google Scholar

37. Retrospectively, it is worth recalling that Mr. Fernandes himself complained about the ‘mutilation suffered by the text of the Committee of Jurists’, in a paper published shortly after the creation of the Court. In the same text the Brazilian jurist did not hesitate to underline the sacrifice made by ‘I'Amerique du Sud’ in abandoning its insistence on the establishment of a truly compulsory jurisdiction (Fernandes, , loc. cit. n. 2, at pp. 151–152).Google Scholar

Verzjil, for his part, affirms that Mr. Fernandes ‘…in all probability did not himself realize at that time the enormous impact which his inspiration was destined to have on international relations in the years to come’. (Verzil, J.H.W., International Law in a Historical Perspective, Vol. VIII (1976) p. 376).Google Scholar

38. Quoted by Hudson, , op. cit. n. 20, at p. 193.Google Scholar

39. See the second paragraph in section 2 supra.

40. It is noteworthy that the debate in 1945 operated within a different range of possibilities: the original options regarding the question of jurisdiction were either to maintain the system of the Optional Clause as laid down in Art. 36, para. 2, or to incorporate compulsory jurisdiction by modifying that provision. An ingenious transactional formula proposed by the Egyptian delegation at the Washington Committee of Jurists was turned down in the Committee and did not find its way to the Conference. It consisted of substituting the existing system of ‘contracting in’ for a new system of ‘contracting out’, according to which the compulsory jurisdiction was to be adopted as a general rule, being understood that States could escape its application through reservations or otherwise. (On this see in particular supra n. 12. See also Hambro, E., ‘Some Observations on the Compulsory Jurisdiction of the ICJ’, 25 BYJL (1948) pp. 138–139;Google ScholarGoodrich, L.M. et al. , Charter of the United Nations—Commentary and Documents, 3rd. edn. (1969) pp. 545–547;Google ScholarGross, L., ‘Compulsory Jurisdiction Under the Optional Clause: History and Practice’, in Damrosch, L.F., ed., The ICJ at a Crossroads (1987) p. 21;Google ScholarICJ Yearbook(1946–1947)pp. 19, 23–24;Google ScholarWaldock, , loc. cit. n. 32,at p.245;Google Scholar and Rosenne, ,op.cit n. 8, at pp. 365–367.Google Scholar

41. Merrills, J., ‘The Optional Clause Today’, 50 BYIL (1979) p. 87;Google ScholarBailey, B., The Optional Clause Reconsidered: Its Nature and Potential as a Future Source of Jurisdiction (1987) p. 45 et seq.;Google ScholarScott, G.L. and Carr, C.L., ‘The ICJ and Compulsory Jurisdiction: The Case for Closing the Clause’, 81 AJIL (1987) p. 57;CrossRefGoogle ScholarHambro, , loc. cit. n. 32, at p. 138;Google ScholarWaldock, , loc. cit. n. 32, at p. 245;Google ScholarRosenne, , op. cit. n. 8, at pp. 419–421;Google ScholarVerzijl, , op. cit. n. 37, at p. 376.Google Scholar

42. Unless otherwise stated, the information used to prepare this list was taken from the following sources: Hudson, , op. cit. n. 20, at pp. 681–705;Google ScholarRosenne, S., Documents on the ICJ, 2nd. edn. (1979) pp. 345–416; and ICJ Yearbooks 1946–1990.Google Scholar

43. Several countries have in the pastresorted to the method of including their declaration accepting compulsory jurisdiction in the instrument of ratification of the Statute (El Salvador, in 1930; Paraguay, in 1933, etc.). By contrast, the Brazilian declaration is the only known example of subjecting the entry into force of the declaration to the acceptance of jurisdiction by third States. (See Waldock, , loc. cit. n. 32, at p. 255;Google ScholarThirlway, , loc. cit. n 32, at pp. 104–105).Google Scholar

44. Curiously enough, this last declaration is signed by Mr. Raul Fernandes, the then Minister for Foreign Affairs of Brazil (UNTS (1948) Vol. 15(1) No. 237, p. 222).Google Scholar

45. See ICJ Yearbook 1989–1990, p. 70, note 2. On the occasion of the 1973 declaration mere was an exchange of notes between El Salvador and Honduras, on the validity of the new declaration. These notes were circulated by the UN Secretary-General. (See the text in Rosenne, , op. cit. n. 42, at pp. 361–369).Google Scholar

46. ICJ Rep. (1953)p. 111.Google Scholar

47. ICJ Rep. (1960)p. 192.Google Scholar

48. ICJ Rep. (1988)p. 69.Google Scholar

49. ICJ Rep. (1984) p. 392.Google Scholar See also: Briggs, H.J., ‘Nicaragua v. United States Jurisdiction and Admissibility’, editorial comment in 79 AJIL (1985) pp. 373–378;CrossRefGoogle Scholar T. M. Franck, ‘Icy Day at the ICJ’, ibid, at pp. 379–384 K. Highet, ‘Litigation Implications of the US Withdrawal from the Nicaragua Case’, ibid, at pp. 992–1005; Pax, T.J., ‘Nicaragua v. United States in the ICJ; Compulsory Jurisdiction or Just Compulsion?’, 8(2) Boston College ICLR (1985) pp. 471–515;Google ScholarReisman, M., ‘Has the International Court Exceeded its Jurisdiction?’, 80 AJIL (1986) p. 128;CrossRefGoogle ScholarGill, T.D., Litigation Strategy at the International Court—A Case Study of the Nicaragua v. United States Dispute (1989) pp. 148–170.Google Scholar

50. SeriesE,No. 15, p.220, note 4;Google ScholarICJ Yearbook(1946–1947)p.211, note2.Google Scholar For a comment, see Raigon, R. Casado, Las Bases de Jurisdicción de la CIJ. Estudio de las Reglas de su Competencia, Cuadernos de Derecho International de la Universidad de Cordoba, No. 1 (1987) p. 155 et seq.Google Scholar

51. Only seven countries in the world are in this position. Six of them are from Latin America, the seventh being Luxembourg (ICJ Yearbook (1989–1990) p. 79).Google Scholar

52. Nevertheless, it is also quite true that all the declarations which have been made in recent years include reservations. One of them even contains one unfortunate subjective reservation on domestic jurisdiction, i.e., one of the so-called ‘automatic reservations’.

53. Examples of bilateral treaties of this kind are the Protocol of Rio de Janeiro between Colombia and Peru of 1934; the Treaty of Non-Aggression, Conciliation, Arbitration and Judicial Settlement between Colombia and Venezuela of 1939; the Treaty for the Pacific Settlement of Disputes between Brazil and Venezuela of 1940; the Treaties on the La Plata and Uruguay Rivers between Argentina and Uruguay of 1973 and 1975; and the General Peace Treaty between El Salvador and Honduras of 1980. In the list which appears in the Court's Yearbook it is also possible to find approximately eight bilateral instruments of this kind which have been concluded with extra-continental States; and, of course, several multilateral treaties containing jurisdictional clauses which have been ratified by most of the Latin American States (ICJ Yearbook (1989–1990) pp. 98–115).Google Scholar

54. The other two are the Revised General Act for the Pacific Settlement of International Disputes, open for accession on 28 April 1949; and the European Convention for the Peaceful Settlement of Disputes, open for signature on 29 April 1957; The texts of the three instruments can be found in the following issues of the Treaty Series: 1:449, Vol. 30; 1:912, Vol. 71; and 1:4646, Vol. 320.

55. The full list of these instruments can be found in Art. 58 of the Pact. They are: Treaty to Avoid or Prevent Conflicts between die American States (‘Gondra Pact’), of May 3,1923; General Convention of Inter-American Conciliation, of January 5, 1929; General Treaty of Inter-American Arbitration and Additional Protocol of Progressive Arbitration, of January 5, 1929; Additional Protocol to the General Convention of Inter-American Conciliation, of December 29,1933; Anti-War Treaty of Non-Aggression and Conciliation (‘Saavedra-Lamas Pact’), of October 10,1933; Convention to Coordinate, Extend and Assure the Fulfillment of the Existing Treaties between the American States, of December 23,1936; and Treaty on the Prevention of Controversies, of December 23, 1936.

56. The following States are currently parties to the Pact (the asterisk denotes a reservation): Brazil, Chile*, Colombia, Costa Rica, the Dominican Republic, Haiti, Honduras, Mexico, Nicaragua*, Panama, Paraguay*, Peru* and Uruguay. El Salvador notified its denunciation on November 26,1973. Four other States which failed to ratify the treaty had made far-reaching reservations upon signing (Amador, F. Garcia, The Inter-American System. Treaties, Conventions & Other Documents (1983) Vol. 1, Part II, pp. 235–236).Google Scholar

57. See the comprehensive studies by Franco, G. Leoro, ‘La Refbrma del Tratado Americano de Soluciones Pacfficas o Pacto de Bogotá’, Anuario Jurídico Interamericano (1981) p. 30;Google Scholar and Jiménez de Aréchaga, E., ‘Tentativas de Reforma del Pacto de Bogotá’, Anuario Jur‘dico Interamericano (1986) p. 3.Google Scholar

58. See Resolution AG/RES.821 (XVI-0/86); Resolution passed by the General Assembly on 14 November 1987; AG/doc.2368/88 rev. 1, ‘Estudio de las Razones por las Cuales un Mayor Número de Estados no son Parte en el Tratado Americano de Soluciones Pacíficas (Pacto de Bogotá)’.

59. See, for instance, the Treaty on Non-Aggression, Conciliation, Arbitration and Judicial Settlement between Colombia and Venezuela of 1939 (Art. XV).

60. It is true that both the General Revised Act of 1928/1949 and the European Convention of 1957 confer jurisdiction on the Court with regard to legal disputes, but the only instrument which does so by ‘contractualizing’ the system of the Optional Clause is the Pact of Bogota. This can even be interpreted as a drawback of the 1948 Treaty, as Judge Oda appears to do in a recent Separate Opinion (infra n. 65, Separate Opinion of Judge Oda, at p. 124, para. 15).Google Scholar

61. de Aréchaga, E. Jiménez, ‘The Compulsory Jurisdiction of the International Court of Justice under the Pact of Bogota and the Optional Clause’, in Y., Dinstein, ed, International Law at a Time of Perplexity, Essays in Honour of Shabtai Rosenne (1987) p. 356 et seq.Google Scholar See also Lutz, R.E., ‘Perspectives on the World Court, the United States, and International Dispute Resolution in a Changing World’, 25(3) Int. Lawyer (1991) p. 685, n. 46 in fine;Google Scholarinfra n. 65, at p. 84, paras. 33-34,Google Scholar and ibid. Separate Opinion of Judge Shahabuddeen, at p. 140.

62. Judge Oda has called this giving carte blanche to the Court, and has correctly pointed out that no other treaty or convention comprising such a comprehensive obligation to adhere to the Court's jurisdiction has ever in fact existed. (Infra n. 65, Separate Opinion of Judge Oda, at pp. 112 and 113, para. 5; see also infra n. 76).Google Scholar

63. The Pact of Bogota is indeed the only mutilateral treaty on pacific settlement of disputes which has been interpreted by the Court. The 1929/1949 General Act has been invoked before it on several occasions, but in all instances the Court has declined to make substantive pronouncements. (See the comprehensive study by Merrills, J.G., ‘The ICJ and the General Act of 1928’, 39 Cambridge LJ(1980) pp. 137–171).CrossRefGoogle Scholar

64. Border and Transborder Armed Actions (Nicaragua v. Costa Rica), Order of 19 August 1987, ICJ Rep. (1987) p. 182.Google Scholar It is noteworthy that Costa Rica never challenged either the Court's jurisdiction under the Pact of Bogota nor the admissibility of the dispute; on the contrary, it had announced its intention to enter a counter-claim against Nicaragua. For a narrative of the events surrounding Nicaragua's cases against Costa Rica and Honduras, see Gill, , op. cit n. 49, at pp. 282–285).Google Scholar

65. Border and Transborder Armed Actions—Jurisdiction and Admissibility (Nicaragua v. Honduras), Judgment of 20 December 1988, ICJ Rep. (1988) p. 69.Google Scholar

66. Ibid. p. 82, para. 27.

67. Ibid. p. 90, para. 48.

68. Ibid. pp. 90–106, paras. 49–94.

69. While Nicaragua's Memorial was filed cm 8 December 1989, the time-limits for the filing of Honduras' Counter-Memorial have already been postponed several times. By the time this paper went to press, it was consistently rumoured that the parties were about to reach an extra-judicial arrangment which would lead to a formal discontinuance of the case.

70. Ibid. p. 84, para. 32.

71. Ibid. p. 85, para. 36. On the relationship between Art. XXXI of the Pact and declarations under the Optional Clause, see de Aréchaga, Jiménez, loc. cit n. 61, at pp. 355–360.Google Scholar

72. Judgment of 20 December 1988, supra n. 65, p. 84, para. 34.Google Scholar

73. Ibid. pp. 85–88, paras. 37–40. Judge Oda departs from the Court on this point, devoting most of his Separate Opinion appended to the Judgment to record his personal understanding of the evolutionary process of the idea of pacific settlement within the Biter-American System (ibid. Separate Opinion of Judge Oda, pp. 115–124, paras. 8–14).

74. Ibid. pp. 110–111, para. 3. Judge Shahabuddeen also refers to this aspect in a passage in his opinion appended to the Judgment (ibid. Separate Opinion of Judge Shahabudeen, pp. 148–149).

75. Supra n. 65, at pp. 89–90, para. 47.Google Scholar On the relationship between Art XXXI and XXXII, see in particular the thorough analysis by Judge Shahabuddeen (ibid. Separate Opinion of Judge Shaha-buddeen, pp. 144–150).

76. Supran n.65, at p.90, para 47.Google ScholarThe point is given detailed consideration in Judge Oda's Opinion (ibid. Separate Opinion of Judge Oda, pp. 112–114, paras. 5–7). See also the comments by Judge Shahabuddeen (ibid. Separate Opinion of Judge Shahabuddeen, pp. 144–145).

77. See supra n. 65, at p. 94, para. 62.Google Scholar

78. Art. II of the Pact reads as follows:

‘The High Contracting Parties recognize the obligation to settle international controversies by regional pacific procedures before referring them to the Security Council of the United Nations. Consequently, in the event that a controversy arises between two or more signatories which, in the opinion of the parties, cannot be settled by direct negotiations through the usual diplomatic channels, the parties bind themselves to use the procedures established in the present Treaty, in the manner and under the conditions provided far in the following articles, or, alternatively, such special procedures as, in their opinion, will permit mem to arrive at a solution.’

An analogous linguistic discrepancy was recorded by the Court with regard to the text of Art. XXXII (supra n. 65, p. 89, para. 45).Google Scholar

79. Ibid. pp. 94–95, para. 65.

80. Ibid. p. 100, para. 80. Given that it held that the Cantadara process had effectively finished by the date of filing the Application, the Court refrained from itself pronuncing on whether it constituted a ‘special procedure’ or a ‘pacific procedure’, within die meaning of Arts.II and IV of the Pact (ibid. para. 79).

81. Arts. 39 and 40 of the Vienna Convention on die Law of Treaties of 23 May 1969.

82. As may be obvious, additional questions can be made in die opposite sense, such as what would be the attitude of the thirteen States Parties to the Pact regarding the process of studying the ‘new’ American Treaty of Pacific Settlement? Or, how do the non-parties to die Pact view that process?

83. Supra n. 65, p. 71, para. 5.Google Scholar The Judgment also records the fact that the Court instructed the Registry to transmit copies of the written proceedings to the Secretary-General of the OAS, and to inform the latter of a time-limit for the submission of any observations the Organization might wish to submit, pursuant to Art. 69, para. 3, of the Rules. The Secretary-General declined to assume that responsibility, and limited himself to taking note of the fact that the States Parties to the Pact had already been informed by the Court that the proceedings appeared to raise questions regarding the interpretation of that Treaty. (Ibid. pp. 71–72, paras. 6 and 7).

84. The cases in which Latin American countries have participated as parties before the Court are:

—Asylum (Colombia/Peru) 1949–1950.

—Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru) 1950.

—Haya de la Torre (Colombia v. Peru) 1950–1951.

—Nottebohm (Liechtenstein v. Guatemala) 1951–1955.

—Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua) 1958–1960.

—Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) 1984–1991.

—Border and Transborder Armed Actions (Nicaragua v. Costa Rica) 1986–1987 (Discontinued).

—Border and Transborder Armed Actions (Nicaragua v. Honduras) 1986-to date.

—Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) [Case referred to a Chamber] 1986-to date.

Two other cases appear in the Court's General List: the two instances referred to as Antarctica (United Kingdom v. Argentina) and (UnitedKingdom v. Chile) (1955–1956), on which no procedural action was taken. (See ICJ Yearbook (1989–1990) pp. 3–5).Google Scholar

It can also be noted that States often avail themselves of the right to submit written statements in advisory proceedings before the ICJ, as provided for in Art. 66 of the Statute. To date, several Latin American States have made use of this provision, in a total of seven cases, the following being the most prominent examples:

—Competence of the General Assembly for the Admission of a State to the United Nations (1949–1950). Argentina and Venezuela submitted written statements of some length (ICJ Pleadings, pp. 123–148 and 149–153).

—Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1950–1951). The OAS itself entered written observations (ICJ Pleadings, pp. 15–20).

—Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (1959–1960). Panama submitted a written statement of considerable length and also participated in the oral proceedings (ICJ Pleadings, pp. 302–319 and 437).

—Western Sahara (1974–1975)—A total of eight Latin American countries submitted written observations (ICJ Pleadings, pp. 64–72).

85. ICJ Rep. (1951) p. 71;Google ScholarICJ Rep. (1984) p. 215.Google Scholar

86. Judgment of 13 September 1990, ICJ Rep. (1990) p. 92;Google Scholarsee also Order of 8 May 1987, Constitution of Chamber, ICJ Rep. (1987) p. 10.Google Scholar

87. ICJ Rep. (1950) p. 395. See also n. 31, supra.Google Scholar

88. Nottebohm (Liechtenstein v. Guatemala), Preliminary Objection, Judgment, ICJ Rep. (1953) p. 111; supra n. 65.Google Scholar

89. Falk, R., Reviving the World Court (1986) pp. 21–22.Google Scholar