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The Pact of Bogotá in the Jurisprudence of the International Court of Justice

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Nicaragua Before the International Court of Justice

Abstract

The American Treaty on Pacific Settlement or ‘Pact of Bogota’ was invoked for the first time as a basis of jurisdiction of the Court in 1986 in the context of proceedings introduced by Nicaragua against Costa Rica and Honduras. Since then, the Pact has been invoked in most of the disputes involving Latin American States. What it is proposed in the following pages is a dissection of the provisions of the Pact that shape the procedures before the Court to analyze how they operate and in which manner the Court has contributed to define them. The analysis first looks at the judicial system under the Pact; the study delves into the grounds invoked to contest the jurisdiction of the Court and the admissibility of the claims brought before it; thereafter, it is the application of the denunciation clause of the Pact which deserves a particular attention. The Pact and the Court have resulted to be an effective combination to the pacific settlement of disputes between Latin American States Parties. Therefore, it would be highly regrettable that the endeavor and long-standing commitments on which they rest could be questioned for the wrong reasons.

Antonio Remiro Brotóns was part of the legal team representing the Republic of Nicaragua in the following cases: Border and Transborder Armed Actions (Nicaragua v. Honduras); Border and Transborder Armed Actions (Nicaragua v. Costa Rica); Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras); Territorial and Maritime Dispute (Nicaragua v. Colombia); Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua); Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia (Nicaragua v. Colombia); Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia); Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua). The views and opinions expressed in this Chapter are those of the author and do not necessarily reflect the views and opinions of the Republic of Nicaragua. The author would like to thank Gimena González for her comments and suggestions.

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Notes

  1. 1.

    OAS Treaty Series, No. 17 and 61. The Pact was signed at Bogotá on 30 May 1948 during the Ninth Inter-American Conference, and entered in force on 6 May 1949.

  2. 2.

    The Pact had been discussed in the Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua) case, especially its relation with the special agreement concluded in Washington on 21 July 1957. However, it played no role in the establishment of the Court’s jurisdiction, ultimately founded on the Agreement and the declarations under Article 36, paragraph 2 (see Judgment, ICJ Reports 1960, p. 194).

  3. 3.

    Border and Transborder Armed Actions (Nicaragua v. Costa Rica), Application instituting proceedings, 28 July 1986.

  4. 4.

    Border and Transborder Armed Actions (Nicaragua v. Honduras), Application instituting proceedings, 28 July 1986.

  5. 5.

    Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 14 (hereinafter ‘Nicaragua v. United States (Merits)’).

  6. 6.

    Ibid., p. 175, para 290.

  7. 7.

    Procedure for the Establishment of a Firm and Lasting Peace in Central America, Guatemala City, 7 August 1987. The Accord was signed by the presidents of Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua. The document contains the principles guiding the resolution of the conflict and the organization of its aftermath; see Annex incorporating the Accord in Doc. UNGA A/42/521, S/19085.

  8. 8.

    Border and Transborder Armed Actions (Nicaragua v. Costa Rica), Order of 19 August 1987, ICJ Reports 1987, p. 182. Nicaragua had deposited its Memorial 10 August 1987.

  9. 9.

    Border and Transborder Armed Actions (Nicaragua v. Honduras), Order of 27 May 1992, ICJ Reports 1992, p. 222.

  10. 10.

    Hearings were held from 6 to 15 June 1988.

  11. 11.

    Border and Transborder Armed Actions (Nicaragua v. Honduras), Preliminary Objections, Judgment, ICJ Reports 1988, p. 107, paras 98–99 (hereinafter ‘Armed Actions (Nicaragua v. Honduras) (Judgment)’).

  12. 12.

    The three exceptions are: first, the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening). The jurisdiction in this case was based on a compromis concluded by the Parties on 24 May 1986, notified to the Court on 11 December 1986. The second exception is the Application for Revision of the Judgment of 11 September 1992 in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras). In this case Article 61 of the Statute and Articles 99 and 100 of the Rules of the Court acted as basis of jurisdiction. The third exception is found in the case Pulp Mills on the River Uruguay (Argentina v. Uruguay). In this case the jurisdiction was based on Article 60 of the Statute of the Uruguay River—a treaty concluded by the two States on 26 February 1975. Argentina had signed the Pact in 1948 but, unlike Uruguay, had not become a State Party.

  13. 13.

    See the Chronological List of Cases of Nicaragua before the ICJ at the beginning of this book.

  14. 14.

    Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, ICJ Reports 2007, p. 832 (hereinafter ‘Nicaragua v. Colombia (Jurisdiction)’).

  15. 15.

    Ibid., pp. 841–847, paras 15–32, where the historical context of the case is described.

  16. 16.

    Ibid. pp. 875–876, para 142.

  17. 17.

    See Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Costa Rica for permission to Intervene, Judgment, ICJ Reports 2011, p. 348 and Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Honduras for permission to Intervene, Judgment, ICJ Reports 2011, p. 420.

  18. 18.

    Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, Judgment, ICJ Reports 2012, p. 624 (hereinafter ‘Nicaragua v. Colombia (Merits)’).

  19. 19.

    Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016 (hereinafter ‘Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction)’) and Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016 (hereinafter ‘Alleged Violations (Jurisdiction)’).

  20. 20.

    See Article 55(2) of the Statute of the Court. This situation did not arise since the vote in the advisory opinion concerning the Legality of the Threat or Use of Nuclear Weapons (ICJ Reports 1996, p. 266, para 105(2)(E)).

  21. 21.

    The other cases with no preliminary objections were: Maritime Dispute (Peru v. Chile) (2008–2014); Aerial Herbicide Spraying (Ecuador v. Colombia) (2008–2013) and Certain Questions concerning Diplomatic Relations (Honduras v. Brazil) (2009–2010). Only the first one resulted in a judgment on the merits, being the other two discontinued.

  22. 22.

    See Article 79(1) of the Rules of the Court.

  23. 23.

    Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Judgment of 24 September 2015, para. 56 (hereinafter ‘Obligation to Negotiate Access to the Pacific Ocean (Jurisdiction)’).

  24. 24.

    Honduras even claimed that the conclusion of the agreement on 21 July 1957, which acted as basis of the jurisdiction in the Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua) case, implied that the reservation entered by Nicaragua with respect of Article VI had been deemed applicable to its declaration and, in consequence, Nicaragua had recognized the existence of a link between the Pact and the declaration. This argument fell short to explain the facts, as the Court then found in the Judgment of 20 December 1988 stating that ‘[t]he conclusion of the Washington Agreement could be explained much more simply by the parties’ desire to avoid any controversy over jurisdiction, by preventing any objection being raised before the Court either on the basis of Nicaragua’s reservation to the Pact or concerning the validity of its declaration of acceptance of compulsory jurisdiction’ (supra n. 11, pp. 87–88, para 40).

  25. 25.

    See the Declaration of 6 June 1986 modifying the Declaration made on 20 February 1960 concerning Article 36 (2) of the Statute.

  26. 26.

    Armed Actions (Nicaragua v. Honduras) (Judgment), supra n. 11, pp. 83–84, paras 30–33.

  27. 27.

    Ibid., p. 84, para 32.

  28. 28.

    Ibid., paras 33–34.

  29. 29.

    Ibid., pp. 84–85, para 35. The provisions cited referred to matters that fall exclusively within domestic jurisdiction (Article V), or which have been already settled or are governed by other instruments (Article VI), as well as specific rules relating to diplomatic protection where access to justice has not been made available before domestic courts of the respective State (Article VII).

  30. 30.

    Ibid., Article LV of the Pact refers to reservations providing that the latter ‘shall, with respect to the State that makes them, apply to all signatory States on the basis of reciprocity’.

  31. 31.

    Ibid., pp. 84–85, paras 35–36 (emphasis added). See also Nicaragua v. Colombia (Jurisdiction), supra n. 14, p. 873, para 134.

  32. 32.

    ‘as not all the stages of the drafting of the texts at the Bogota Conference were the subject of detailed records’ (Armed Actions (Nicaragua v. Honduras) (Judgment), supra n. 11, pp. 85–86, para 37; see also pp. 86–87, paras 38–39).

  33. 33.

    Ibid., pp. 87–88, para 40.

  34. 34.

    Ibid., p. 88, para 41. See also the Separate Opinion of Judge Shahabuddeen (ibid., pp. 133–144).

  35. 35.

    Ibid., p. 90, para 48.

  36. 36.

    Nicaragua v. Colombia (Jurisdiction), supra n. 14, pp. 870–871, paras 123–126.

  37. 37.

    Ibid., pp. 871–872, paras 128–130.

  38. 38.

    ‘In particular, by stating that the commitment under Article XXXI is an autonomous commitment, independent from an optional clause declaration, the Court explained why “the commitment in Article XXXI can only be limited by means of reservations to the Pact itself” (ibid.)’ (ibid., p. 873, para 134).

  39. 39.

    Ibid., p. 873, para 136—emphasis added.

  40. 40.

    Ibid., pp. 872–873, para 133.

  41. 41.

    Ibid., pp. 872–873, paras 132 and 137.

  42. 42.

    Ibid., pp. 873–874, para 138.

  43. 43.

    See the Dissenting Opinion of Vice-President Al-Khasawneh (ibid., pp. 884–885, paras 18–19), the Separate Opinion of Judge Ranjeva (ibid., pp. 890–891, paras 12–14) and the Dissenting Opinion of Judge Bennouna (ibid., pp. 929–933, para 2). The objective existence of the dispute is also explicit in the declarations appended by Judge Simma (ibid., pp. 896–897) and Judge ad hoc Gaja (ibid., p. 934).

  44. 44.

    Ibid., p. 930, para 2.

  45. 45.

    Ibid., p. 931, para 2.

  46. 46.

    See the Declaration of Judge Parra-Aranguren (ibid., p. 892) and the Separate Opinion of Judge Abraham (ibid., p. 904, para 4 and pp. 918–920, paras 53–63).

  47. 47.

    Ibid., p. 919, para 57. The affirmation that there existed no dispute between the Parties over the three islands seemed to fly, Judge Abraham said, against the most basic common sense and rested ‘on a total, and alarming, distortion of the concept itself of “dispute”’ (ibid., para 58).

  48. 48.

    Ibid., pp. 917–918, para 52, referring to paragraph 133 of the Judgment in particular.

  49. 49.

    ‘In particular, the language specific to Article XXXIV of the Pact, stating that, if the Court declares itself to be without jurisdiction to hear a controversy for one of the reasons set out in Articles V, VI or VII, the controversy “shall be declared ended”, seems to me clearly to preclude submission of the same dispute to the Court on the basis of a different title of jurisdiction after the Court has handed down a judgment declining jurisdiction under the Pact of Bogotá’ (ibid., p. 918, paras 53–56). For a contrary view, see the Declaration of Judge Simma (ibid., pp. 896–897).

  50. 50.

    See Armed Actions (Nicaragua v. Honduras) (Judgment), supra n. 11, p. 88, para 43. The report submitted in November 1948 by the Secretary General, Lleras Camargo, to the Council of the OAS on the Conference of Bogotá seemed to support the idea that a claim unilaterally brought to the Court was only possible on the basis of Article XXXII of the Pact (Annals of the Organization of American States, Vol. 1, No. 1, pp. 48–49; see also Abello Galvis (2005), pp. 403–441). Judge Shahabuddeen, in separate opinion, reflected on this in the following terms: ‘But it does not, in my opinion, prevail over what I consider to be the ordinary and natural meaning of the scheme of the Pact to be ascertained in accordance with the leading principle enunciated in Article 31 of the Vienna Convention on the Law of Treaties, 1969, or over the views of other commentators who speak differently’ (ibid., p. 149). Among them, the members of the Inter-American Juridical Committee in the Report of 1985 and its rapporteur, Galo Leoro (Annex No. 23 of the Counter-Memorial of Nicaragua), all mentioned, together with other authoritative sources, by Judge Shahabuddeen (ibid., p. 150).

  51. 51.

    Armed Actions (Nicaragua v. Honduras) (Judgment), supra n. 11, pp. 88–90, paras 42–47.

  52. 52.

    Ibid., p. 89, para. 45. It is true that, as the Court observed, the French version of the text, in referring to ‘droit de porter la question devant la Cour’ in Article XXXII instead of using the term ‘différend’ as Article XXXI does, ‘leaves room for uncertainty’, however, 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’.

  53. 53.

    Ibid.

  54. 54.

    Ibid., para 46. Judge Oda, in line with his strict conception of the consent of the Parties as basis of jurisdiction, expressed in his individual opinion that, even voting in favor, he did so with some reticence (ibid., p. 109, para 1). The interpretation that one Party could seize the Court on basis of Article XXXI provided that this was in conformity with Article XXXII was also a possibility (see paras 5–14). At the other end of the spectrum was the individual opinion of Judge Shahabuddeen, who reinforced and elaborated on the reasoning of the Court. (ibid., pp. 144–150).

  55. 55.

    Armed Actions (Nicaragua v. Honduras) (Judgment), supra n. 11, pp. 89–90, para 47.

  56. 56.

    For the drafting history of Article VI of the Pact from Peru’s proposal to the Plenary’s approval, of the final text, see Ninth International Conference of American States, Bogotá, 30 March 1948–2 May 1948, Records and Documents, 1953, Vol. I, p. 234, Vol. II, pp. 435–591 and Vol. IV, pp.134–136.

  57. 57.

    Nicaragua v. Colombia (Jurisdiction), supra n. 14, p. 857, para 73 and p. 859, para 82. In his Separate Opinion, Judge Abraham pointed out that ‘Article VI must be read as a bar to the Court’s jurisdiction where the disputed matter is governed by a Treaty which was in force in 1948 (as is written), provided that the Treaty is still in force at the date the proceedings are instituted (as is implied)’ (ibid., p. 912, para 26). See also that of Judge Ranjeva (ibid., p. 890, para 10).

  58. 58.

    As rightly pointed out by Judge Abraham, once decided that a dispute or a part of it was not settled or governed by the treaty, there was no need to look at whether 1928 Treaty was in force at the time of the conclusion of the Pact (ibid., pp. 907–908, para 15).

  59. 59.

    See the Separate Opinions of Judge Ranjeva (ibid., p. 890, para 10) and Judge Abraham (ibid., p. 913, para 30), Jugde Bennouna (Ibid., p. 924).

  60. 60.

    Nicaragua v. Colombia (Jurisdiction), supra n. 14, pp. 858–859, paras 77–81. The Court adopted the arguments advanced by Colombia as to the absence of reservations in the case, noting that Nicaragua had took good care to enter one reservation concerning the arbitral awards (ibid., p. 858, para 76).

  61. 61.

    See the Separate Opinion of Judge Abraham (ibid., pp. 913–916, paras 33–34 and 41–46) and the Dissenting Opinion of Judge Bennouna (ibid., pp. 924–925). This opinion is also shared by Judge Simma: ‘To say that Nicaragua, by its behaviour concerning the 1928 Treaty somehow forfeited the right to invoke its invalidity, is one thing; to go on from there to find that, for the same reasons, the Treaty was actually valid and in force on the date of the conclusion of the Pact of Bogotá in 1948, is quite another. In my view, the second conclusion does not follow from the first’ (ibid., pp. 894–895).

  62. 62.

    Nicaragua v. Colombia (Jurisdiction), supra n. 14, p. 848, para 39.

  63. 63.

    Ibid., pp. 860–869, paras 83–120.

  64. 64.

    Obligation to Negotiate Access to the Pacific Ocean (Jurisdiction), supra n. 23, paras 25–36.

  65. 65.

    Ibid., paras 37–49.

  66. 66.

    Ibid., para 50. For a distinction of the two limbs, see the Declaration by Jugde Gaja, paras 2–3.

  67. 67.

    Bolivia had contended that, if the Court addressed the objection on the basis of Chile’s characterization of the dispute, this would amount to a confirmation of Bolivia’s case on the merits, and would therefore not possess an exclusive preliminary character. Chile’s characterization rejected, the argument played no subsequent role, see Obligation to Negotiate Access to the Pacific Ocean (Jurisdiction), supra n. 23, para 50.

  68. 68.

    See ibid., paras 52–53. For further reflections on this specific issue, see the Declaration of Judge Gaja, para 4 and the Dissenting Opinion of Judge ad hoc Arbour, paras 18–30. In Jugde Bennouna’s opinion, these paragraphs turned out to be ‘redundant and misconceived’ because ‘[t]he Court had already defined the subject-matter of the dispute submitted to it […], and had dismissed Chile’s objection based on Article VI of the Pact of Bogotá […] That argument [Bolivia’s] 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’ (para 2).

  69. 69.

    Nicaragua v. Colombia (Jurisdiction), supra n. 14, Separate Opinion of Judge Abraham, p. 906, para 8—emphasis in the original. According to the Judge Abraham, ‘[i]n particular, the language specific to Article XXXIV of the Pact, […], seems to me clearly to preclude submission of the same dispute to the Court on the basis of a different title of jurisdiction after the Court has handed down a judgment declining jurisdiction under the Pact of Bogotá’ (ibid., p. 918, para 55). For a different view, see the Declaration of Judge Simma, Declaration (ibid., pp. 896–897).

  70. 70.

    As the Judgment of 19 November 2012 would clearly illustrate 5 years later. For interesting remarks on this, see ibid., Separate Opinion of Judge Abraham, pp. 908–910, paras 16–21.

  71. 71.

    See ibid., p. 906, para 8.

  72. 72.

    Article 79(9) of the Rules of the Court reads: ‘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’.

  73. 73.

    Nicaragua v. Colombia (Jurisdiction), supra n. 14, p. 852, para 51.

  74. 74.

    See the Declaration of Judge Keith (ibid., p. 921, para 1). Jugde Tomka, more explicitly, after expressing that the Court had ‘sound legal grounds to rule on the objection’, examined and rejected the causes invoked by Nicaragua highlighting that ‘the Court would not have been able to reach a decision about the alleged coercion without examining the lawfulness of the United States conduct, when that State is not a party to these proceedings’ (Declaration, ibid., pp. 899–901, paras 8–13). Judge Abraham critically pointed out that ‘[s]ince the explanation for this apparent contradiction cannot be a lack of consistency on the part of my colleagues, I can only suppose that the Court simply wished here to decide the merits of the dispute. In doing so, it has over-stepped the role assigned to it at this stage in the proceedings’ (Separate Opinion, ibid., p. 912, para 27).

  75. 75.

    Nicaragua v. Colombia (Jurisdiction), supra n. 14, p. 849, para 40; see the Dissenting Opinion of Judge Al-Khasawneh (ibid., p. 882, paras 15–16), particularly critic with the démarche.

  76. 76.

    While affirming that the question whether the 1928 Treaty was subject of a cause of termination as result of a substantial breach in 1969 aspect was irrelevant for the purposes of determining the jurisdiction, and that ‘that issue will not be addressed by the Court at this stage’, the Court continued: ‘Even if the Court were to find that the 1928 Treaty has been terminated, as claimed by Nicaragua, this would not affect the sovereignty of Colombia over the islands of San Andrés, Providencia and Santa Catalina. The Court recalls that it is a principle of international law that a territorial régime established by treaty “achieves a permanence which the treaty itself does not necessarily enjoy” and the continued existence of that régime is not dependent upon the continuing life of the treaty under which the régime is agreed (Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 37, paras 72–73)’ (Territorial and Maritime Dispute (Jurisdiction), supra n. 14, p. 861, para 89). Judge ad hoc Gaja went so far as to state that ‘the adoption by Colombia of a wide interpretation of the scope of the 1928 Treaty as including a maritime delimitation, even if incorrect, cannot conceivably constitute a material breach’ (Declaration, ibid., p. 934).

  77. 77.

    See Dissenting Opinion of Judge Al-Khasawneh (ibid., pp. 878–883, paras 2, 4–6, 9, 11–12 and 15–16); Separate Opinion of Judge Ranjeva (ibid., pp. 886–890, paras 2, 5–6, 8 and 10–11); Separate Opinion of Judge Abraham (ibid., pp. 904, 908–910, 914–917, paras 4, 16–20 and 34–49) and Dissenting Opinion of Judge Bennouna (ibid., pp. 923–929, para 1).

  78. 78.

    In Judge Bennouna’s words: ‘Beyond the dispute between Nicaragua and Colombia, such a decision to rule on the validity of a treaty in the jurisdictional phase, and as a result to settle the issue of sovereignty over the three islands in question, constitutes an unfortunate precedent, because it prejudices the outside world’s perception of the role and function of the Court. Those who thought they were banishing in this way any doubts over territorial treaties, which might have a destabilizing effect, did not consider for a moment what would be the scope of the damage caused to the Court by a hasty decision in this jurisdictional phase’ (ibid., p. 929, para 1).

  79. 79.

    For a background and description of the process, see Armed Actions (Nicaragua v. Honduras) (Judgment), supra n. 11, pp. 96–98, paras 70–74 and pp. 100–103, paras 80–88.

  80. 80.

    Ibid., p. 93, para 60.

  81. 81.

    Ibid., p. 94, paras 61–63.

  82. 82.

    Ibid., p. 94, para 64. While the French text referred to ‘de l’avis de l’une des parties’, i.e. in the opinion of one of the parties, the English, Portuguese and Spanish versions the corresponding text was ‘in the opinion of the parties’. And, in opting for a more demanding requirement, the criterion was not mean to be final; in this connection, it was observed that ‘[f]or 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 al1 the arguments that have been put forward by the Parties to explain it or to justify the preferring of one version to another’ (ibid.).

  83. 83.

    Ibid., p. 95, para 65.

  84. 84.

    Ibid., pp. 95–99, paras 67–75.

  85. 85.

    Ibid., p. 99, para 75.

  86. 86.

    Ibid., para 76. Judge Shahabuddeen was particularly skeptical with Honduras’s behavior and noted some internal contradiction; in his opinion, the conclusion of the Court ‘is strengthened by giving some prominence to the circumstance that, as it seems to me, Honduras effectively refused to embark on direct bilateral negotiations’ (Separate opinion, ibid., pp. 151–152).

  87. 87.

    Alleged Violations (Jurisdiction), supra n. 19, para 82.

  88. 88.

    Ibid., paras 86–87.

  89. 89.

    Ibid., para 88.

  90. 90.

    Ibid., para 90.

  91. 91.

    Ibid., para 91.

  92. 92.

    Ibid., para 92.

  93. 93.

    Ibid., para 95.

  94. 94.

    Ibid., para 98.

  95. 95.

    Ibid., para 99—emphasis added.

  96. 96.

    Ibid., para 100.

  97. 97.

    Ibid.—emphasis added.

  98. 98.

    Indeed, this aspect was also noticed to certain extent by Colombia itself when it drew the attention to the timing of the Application: ‘[it] was due not to allegedly futile negotiations, but to the fact that the Pact of Bogotá would soon cease to be in force between the Parties’ (ibid., para 87).

  99. 99.

    See Sect. 5 below.

  100. 100.

    Alleged Violations (Jurisdiction), supra n. 19, para 91.

  101. 101.

    ‘The object and purpose of the Pact’—the Court notes—‘is to further the peaceful settlement of disputes through the procedures provided for in the Pact. Although Colombia argues that the reference to “regional…procedures” in the first paragraph of Article II is not confined to the procedures set out in the Pact, Article II has to be interpreted as a whole. It is clear from the use of the word “consequently” at the beginning of the second paragraph of Article II that the obligation to resort to regional procedures, which the parties “recognize” in the first paragraph, is to be given effect by employing the procedures laid down in Chapters two to five of the Pact. Colombia maintains that its interpretation of the second paragraph of Article LVI would leave Article II - which contains one of the core obligations in the Pact - in effect during the one-year period. The Court observes, however, that Colombia’s interpretation would deprive both the denouncing State and, to the extent that they have a controversy with the denouncing State, all other parties of access to the very procedures designed to give effect to that obligation to resort to regional procedures’ (Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), supra n. 19, paras 39–40 and Alleged Violations (Jurisdiction), supra n. 19, paras 41–42).

  102. 102.

    Armed Actions (Nicaragua v. Honduras) (Judgment), supra n. 11, pp. 99–100, paras 77–78.

  103. 103.

    Ibid., p. 100, paras 79–80.

  104. 104.

    Ibid., p. 105, para 91. Section seven referred to negotiations in security, verification, and arms matters, and Section 10.a) envisaged the creation of an international verification and follow-up commission.

  105. 105.

    Ibid., pp. 104–105, paras 91–92.

  106. 106.

    Ibid., p. 105, para 92.

  107. 107.

    Ibid., p. 105, para 93. Notwithstanding this, the Court pointed out that it: ‘does not mean that the Court is unaware that, subsequent to that date, efforts to resolve the difficulties existing in Central America took a new lease of life with the agreement known as Esquipulas II. Nor should it be thought that the Court is unaware that the Application raises juridical questions which are only elements of a larger political situation. Those wider issues are however outside the competence of the Court, which is obliged to confine itself to these juridical questions […] the Contadora Group did not claim any exclusive role for the process it set in train’ (ibid., p. 106, paras 96–97). For interesting elaborations on this, see Separate Opinion of Judge Shahabuddeen (ibid., pp. 152–156), arguing that the Contadora process was not a procedure within the meaning of Articles II and IV nor was it possible to subsume the object of the dispute into the object of the claim.

  108. 108.

    Note from the Minister for Foreign Affairs of El Salvador to the Secretary General of the OAS, 24 November 1973.

  109. 109.

    Note from the Minister for Foreign Affairs of Colombia to the Secretary General of the OAS, 27 November 2012.

  110. 110.

    Special Agreement concluded on 24 May 1986 (jointly notified to the Court on 11 December 1986), UNTS, Vol. 1437-I, No. 24358, pp. 160–163.

  111. 111.

    Alleged Violations, Application instituting proceedings, 16 September 2013.

  112. 112.

    Question of the Delimitation of the Continental Shelf beyond 200 nm, Application instituting proceedings, 26 November 2013.

  113. 113.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), supra n. 19, paras 23–26 and Alleged Violations (Jurisdiction), supra n. 19, paras 25–28.

  114. 114.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., paras 27–30 and Alleged Violations (Jurisdiction), ibid., paras 29–32.

  115. 115.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., para 31 and Alleged Violations (Jurisdiction), ibid., para 33.

  116. 116.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., para 32 and Alleged Violations (Jurisdiction), ibid., para 34.

  117. 117.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., para 33 and Alleged Violations (Jurisdiction), ibid., para 35.

  118. 118.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., paras 34–45 and Alleged Violations (Jurisdiction), ibid., paras 36–47.

  119. 119.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., para 46 and Alleged Violations (Jurisdiction), ibid., para 48.

  120. 120.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., paras 34–40 and Alleged Violations (Jurisdiction), ibid., paras 36–42.

  121. 121.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., para 35 and Alleged Violations (Jurisdiction), ibid., para 37.

  122. 122.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., paras 36–37 and Alleged Violations (Jurisdiction), ibid., paras 38–39.

  123. 123.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., para 38 and Alleged Violations (Jurisdiction), ibid., para 40.

  124. 124.

    See Sect. 4.1 above.

  125. 125.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), supra n. 19, paras 39–40 and Alleged Violations (Jurisdiction), supra n. 19, paras 41–42.

  126. 126.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., paras 41–42 and Alleged Violations (Jurisdiction), ibid., paras 43–44.

  127. 127.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., para 43 and Alleged Violations (Jurisdiction), ibid., para 45.

  128. 128.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., para 44 and Alleged Violations (Jurisdiction), ibid., para 46.

  129. 129.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., Declaration of Judge ad hoc Brower, paras 1–7.

  130. 130.

    Question of the Delimitation of the Continental Shelf beyond 200 nm (Jurisdiction), ibid., para 45 and Alleged Violations (Jurisdiction), ibid., para 47.

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  1. Public International Law and International Relations, Universidad Autónoma de Madrid, Madrid, Spain

    Antonio Remiro Brotóns

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    Edgardo Sobenes Obregon

  2. University Paris Nanterre, Paris, France

    Benjamin Samson

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Brotóns, A.R. (2018). The Pact of Bogotá in the Jurisprudence of the International Court of Justice. In: Sobenes Obregon, E., Samson, B. (eds) Nicaragua Before the International Court of Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-62962-9_7

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