Latin America and the

International Court of Justice

This book aims to evaluate the contribution of Latin America to the devel-
opment of international law at the International Court of Justice (ICJ). This
contemporary approach to international adjudication includes the historical
contribution of the region to the development of international law through
the emergence of international jurisdictions, as well as the procedural and
material contribution of the cases submitted by or against Latin American
states to the ICJ to the development of international law. The project then
conceives international jurisdictions from a multifunctional perspective,
which encompasses the Court as both an instrument of the parties and an
organ of a value-based international community. This shows how Latin
American states have become increasingly committed to the peaceful settle-
ment of disputes and to the promotion of international law through
adjudication. It culminates with an expansion of the traditional understand-
ing of the function of the ICJ by Latin American states, including an analysis
of existing challenges in the region.
The book will be of interest to all those interested in international dispute
resolution, including academic libraries, the judiciary, practitioners in inter-
national law, government institutions, academics, and students alike.

Paula Wojcikiewicz Almeida is Professor of International Law and Jean

Monnet Chair, sponsored by the European Commission at Fundação
Getulio Vargas Law School in Rio de Janeiro, Brazil. She is an Associate
Researcher at the Institut de Recherche en Droit International et Européen
de la Sorbonne (IREDIES) and received her doctorate summa cum laude
from the Sorbonne Law School, Université Paris 1, France.

Jean-Marc Sorel is Professor of Public Law at Sorbonne Law School,

Université Paris 1, France. He is a former Director of the Institut de
Recherche en Droit International et Européen de la Sorbonne (IREDIES),
Counsel and Advocate of States before the International Court of Justice,
and author or editor of 28 books and 150 articles in different fields of
International Law.
Routledge Research in International Law
Series Editor: Professor Surya P. Subedi, O.B.E.
A full list of titles in this series is available at: www.routledge.com/
Routledge-Research-in-International-Law/book-series/INTNLLAW

Power and Law in International Society

International Relations as the Sociology of International Law
Mark Klamberg

The International Criminal Court and Global Social Control

in Late Modernity
International criminal justice in late modernity
Nerida Chazal

International Law and Boundary Disputes in Africa

Gbenga Oduntan

Means of Transportation and Registration of Nationality

Transportation registered by international organizations
Vincent P. Cogliati-Bantz

Reciprocity in International Law

Its impact and function
Shahrad Nasrolahi Fard

The Responsibility to Protect in International Law

An emerging paradigm shift
Susan Breau

Seeking Justice in International Law

The significance and implications of the UN Declaration on the Rights of
Indigenous Peoples
Mauro Barelli

Legal Accountability and Britain’s Wars 2000–2015

Peter Rowe

Fragmentation vs the Constitutionalisation of International Law

A practical inquiry
Edited by Andrzej Jakubowski and Karolina Wierczyńska

Prosecuting Juvenile Piracy Suspects

The International legal framework
Milena Sterio
Latin America and the
International Court
of Justice
Contributions to international law

Edited by
Paula Wojcikiewicz Almeida
and Jean-Marc Sorel
First published 2017
by Routledge
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and by Routledge
711 Third Avenue, New York, NY 10017

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2017 selection and editorial matter, Paula Wojcikiewicz Almeida and

Jean-Marc Sorel; individual chapters, the contributors

The right of Paula Wojcikiewicz Almeida and Jean-Marc Sorel to be identified

as the authors of the editorial material, and of the authors for their individual
chapters, has been asserted in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or

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without intent to infringe.

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging in Publication Data

Names: Almeida, Paula Wojcikiewicz, 1980-editor. | Sorel, Jean-Marc, editor.
Title: Latin America and the International Court of Justice: Contributions to
International Law/Edited by Paula Wojcikiewicz Almeida and Jean-Marc
Sorel.
Description: New York: Routledge, 2016. | Series: Routledge research in
international law | Includes bibliographical references and index.
Identifiers: LCCN 2016026067 | ISBN 978-1-138-85857-2 (hbk) | ISBN
978-1-315-71789-0 (ebk)
Subjects: LCSH: Latin America—Foreign relations. | International Court of
Justice. | International law—Latin America.
Classification: LCC KZ4116 .L38 2016 | DDC 341.5/52098—dc23
LC record available at https://lccn.loc.gov/2016026067

ISBN: 978-1-138-85857-2 (hbk)

ISBN: 978-1-315-71789-0 (ebk)

Typeset in Galliard
by FiSH Books Ltd, Enfield
Contents

Notes on contributors ix
List of abbreviations xiii
List of maps xvi
Editors’ introduction xvii
Acknowledgements xxii

PART I
The historical contribution of Latin America to the
development of international law through adjudication 1

1 Identity formation, theorization and decline of a Latin

American international law 3
LILIANA OBREGÓN

2 The influence of the Latin American doctrine on

International Law: The rise of Latin American doctrines at
The Hague Academy during the early twentieth century 15
RICARDO ABELLO-GALVIS AND WALTER ARÉVALO-RAMÍREZ

3 Latin America and the II Hague Peace Conference of 1907 28

ANTÔNIO AUGUSTO CANÇADO TRINDADE

4 Latin America and the Central American Court of Justice 39

ROSA RIQUELME

5 Latin America and the Permanent Court of International

Justice 50
MIRIAM COHEN
vi Contents

6 Latin America and the International Court of Justice:

the Pact of Bogotá 61
MARÍA TERESA INFANTE CAFFI

PART II
Procedural contribution of Latin American cases to the
development of international law 75

7 Obligation to negotiate 77
KAREL WELLENS

8 Application for revision of a judgment (Article 61, Statute

of the Court) 88
LEONARDO NEMER CALDEIRA BRANT

9 Discretional intervention (Article 62, Statute of the Court) 98

BEATRICE I. BONAFÉ

10 Intervention by third parties under Article 63 of the Statute 109

LUIS GONZÁLEZ GARCÍA

11 Request for interpretation of a judgment 120

KARIN OELLERS-FRAHM

12 Enforcement of the International Court of Justice decisions 131

KARIN OELLERS-FRAHM

PART III
Material contribution of Latin American cases
to the development of international law:
diplomatic and consular protection 143

13 Vienna Convention on Consular Relations (Paraguay v.

United States of America), 1998 145
CRISTINA HOSS

14 Haya de la Torre (Colombia v. Peru), 1950 157

PABLO SANDONATO DE LEÓN
 Contents vii

15 Asylum (Columbia v. Peru), 1949 and request for

interpretation of the judgment of 20 November 1950 in the
Asylum Case (Colombia v. Peru), 1950 170
GUY S. GOODWIN-GILL

16 Avena and Other Mexican Nationals (Mexico v. United States

of America), 2003 and request for interpretation of the
judgment of 31 March 2004 in the case concerning
Avena and Other Mexican Nationals (Mexico v. United States
of America), 2008 183
CESARE P.R. ROMANO

17 Nottebohm (Liechtenstein v. Guatemala), 1951 195

ALFRED M. BOLL

PART IV
Material contribution of Latin American cases to the
development of international law: international peace
and security 209

18 Military and Paramilitary Activities in and against

Nicaragua (Nicaragua v. United States of America), 1986 211
EFTHYMIOS PAPASTAVRIDIS

PART V
Material contribution of Latin American cases
to the development of international law:
territorial and maritime disputes 223

19 Territorial and Maritime Dispute

(Nicaragua v. Colombia), 2001 225
VIRGINIE J.M. TASSIN

20 Maritime Dispute (Peru v. Chile), 2008 237

TULLIO SCOVAZZI

21 Territorial and Maritime Dispute between Nicaragua

and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), 1999 250
CHIE KOJIMA
viii Contents

22 Case concerning the Arbitral Award made by the King of

Spain on 23 December 1906 (Honduras v. Nicaragua), 1960 262
YOSHIFUMI TANAKA

23 Territorial and Maritime Dispute (El Salvador/Honduras),

2002 273
ANTONIO REMIRO BROTÓNS

PART VI
Material contribution of Latin American cases to the
development of international law: environmental law
and activities carried in the border area 285

24 Construction of a Road in Costa Rica along the San Juan

River (Nicaragua v. Costa Rica), 2011 and Certain activities
carried out by Nicaragua in the border area
(Costa Rica v. Nicaragua), 2010 287
XIMENA FUENTES AND MARIANA DURNEY

25 Dispute regarding Navigational and Related Rights

(Costa Rica v. Nicaragua), 2005 298
MARTIN DAWIDOWICZ

26 Pulp Mills on the River Uruguay

(Argentina v. Uruguay), 2006 309
SANDRINE MALJEAN-DUBOIS AND VANESSA RICHARD

Index 321
Notes on contributors

Contributors’ biographies by order of appearance in the book:

Liliana Obregón is an Associate Professor at the Universidad de los Andes
in Bogotá, Colombia and was a Postdoctoral Researcher at the University
of Helsinki, Finland. She received an SJD at Harvard University; an MA,
SAIS at The Johns Hopkins University (Bologna-Washington, DC); and
a Law degree from the Universidad de los Andes.
Ricardo Abello-Galvis is Principal Professor of Public International Law of
the Universidad del Rosario Law School in Bogotá, Colombia. He is a
Member of the Permanent Court of Arbitration (PCA) (2014–2019);
Director/Editor of the Anuario Colombiano de Derecho Internacional
(ACDI); and Former President of the Colombian Academy of
International Law.
Walter Arévalo-Ramírez is a Professor of Public International Law –
Comparative Law and a Member of Anuario Colombiano de Derecho
Internacional (ACDI). He received LLM Master of Laws in International
Law (Summa Cum Laude) and LLB Political Scientist, Postgraduate in
Constitutional Law at Stetson College of Law, Gulfport, Florida and
obtained his PhD at the Universidad del Rosario Law School in Bogotá.
Antônio Augusto Cançado Trindade is a Judge of the International Court
of Justice, a Former President of the Inter-American Court of Human
Rights, Emeritus Professor of International Law of the University of
Brasilia and of Brazil’s Diplomatic Institute Rio Branco, a Member of the
Curatorium of the Hague Academy of International Law and of the
Institut de Droit International.
Rosa Riquelme is a Professor of International Law at the University of
Murcia (Spain) and a Visiting Fellow at the Human Rights
Implementation Centre of the University of Bristol, UK (2013).
Miriam Cohen is an Assistant Professor at Bora Laskin Faculty of Law at
Lakehead University in Thunder Bay, Ontario, Canada and formerly
served as Associate Legal Officer at the International Court of Justice.
x Notes on contributors

María Teresa Infante Caffi is a Professor of International Law at the

University of Chile, a former Director of Frontiers and Limits Ministry of
Foreign Affairs and Former Director of the Institute of International
Studies University of Chile.
Karel Wellens is an Emeritus Professor of Public International Law at the
University of Nijmegen in the Netherlands. His most recent publication is
Negotiations in the Case Law of the International Court of Justice, A
Functional Analysis.
Leonardo Nemer Caldeira Brant is Professor of International Law at
UFMG and PUC Minas, Belo Horizonte, Brazil. He is President of the
Brazilian International Law Center (CEDIN), Chief Editor of the
Brazilian Yearbook of International Law and served as legal advisor to the
International Court of Justice.
Beatrice I. Bonafé (PhD, EUI) is an Associate Professor of Public
International Law at Sapienza University of Rome, Italy, where she
teaches International Dispute Settlement and International Organizations
Law.
Luis González García is a member of Matrix Chambers, UK. He specialises
in international dispute resolution and advises and acts for governments,
international organisations and corporations in international law matters.
Prior to joining Matrix, he acted as counsel and lead counsel for Mexico
in NAFTA arbitrations.
Karin Oellers-Frahm is a Senior Research Fellow at the Max-Planck
Institute for Comparative Public Law and International Law in
Heidelberg, Germany. She has written widely on issues of international
law, focusing in particular on aspects of public international law and the
International Court of Justice.
Cristina Hoss is a Legal Adviser to Judge Bruno Simma at the Iran–US
Claims Tribunal. Prior to joining the Tribunal, she was a Legal Officer at
the International Court of Justice and a Research Fellow at the Max-
Planck Institute in Heidelberg, Germany.
Pablo Sandonato de León is an Associate with a Swiss law firm and was
formerly Associate Professor of Public International Law (Uruguay). He
is a Member of the Bar of Uruguay and of the Geneva Bar Association
(‘Ordre des Avocats de Genève’).
Guy S. Goodwin-Gill is Emeritus Fellow of All Souls College, Oxford,
Emeritus Professor of International Refugee Law and Honorary Associate
of the Refugee Studies Centre, University of Oxford. He is also a barrister
at Blackstone Chambers, London, where he practises in public interna-
tional law, human rights, citizenship, refugee and asylum law.
 Notes on contributors xi

Cesare P.R. Romano is a Professor of Law and W. Joseph Ford Fellow at

Loyola Law School, Los Angeles, US, and a Senior Fellow, iCourts,
University of Copenhagen, Denmark, and Pluricourts, University of Oslo,
Norway.
Alfred M. Boll, SJD, is a United States Foreign Service Officer currently
serving as Deputy Director of the Department of State’s Office of
International Migration. He is the author of Multiple Nationality and
International Law (2007). He was previously a legal adviser to the
International Committee of the Red Cross.
Efthymios Papastavridis is a Postdoctoral Research Assistant in International
Law of the Sea at the Faculty of Law of Oxford University, a part-time
Lecturer in Public International Law at the Democritus University of
Thrace and a Research Fellow at the Academy of Athens.
Virginie J.M. Tassin is a lawyer admitted to the Paris Bar, an award-winning
specialist in Law of the Sea (INDEMER Prize 2011), and a Researcher at
DIRNAT (Brazil). She served in the International Tribunal for the Law of
the Sea’s Legal Office as an Associate Legal Officer.
Tullio Scovazzi is a Professor of International Law at the University of
Milano-Bicocca, Milan, Italy.
Chie Kojima, PhD (Chuo), LLM (Yale) and JSD (Yale), is an Associate
Professor in the Faculty of Law at Musashino University in Tokyo, Japan.
Yoshifumi Tanaka, PhD and DES (Graduate Institute, Geneva), LLM
(Hitotsubashi University, Tokyo) is a Professor in the Faculty of Law at
the University of Copenhagen in Denmark.
Antonio Remiro Brotóns is an Emeritus Professor of Public International
Law in the Universidad Autonoma of Madrid, Spain, and a member of the
Institut de Droit International.
Ximena Fuentes is a Professor of Public International Law at Universidad
de Chile.
Mariana Durney, LLM int., (Heidelberg University/University of Chile) is
a Professor at the Diplomatic Academy of Chile.
Martin Dawidowicz, PhD (Cantab), M.Jur (Oxon), Jur.Kand (Stockholm)
is a Departmental Lecturer in Public International Law at the University
of Oxford, UK.
Sandrine Maljean-Dubois is a Researcher at the Centre National de la
Recherche Scientifique (CNRS) and teaches International and European
Environmental Law at the Faculty of Law and Political Sciences of Aix-
Marseille University, France.
xii Notes on contributors

Vanessa Richard is a Researcher at the Centre National de la Recherche

Scientifique (CNRS) specialising in international water law and interna-
tional environmental law. She has been awarded an ERC Grant for the
International Grievance Mechanisms and International Law &
Governance (IGMs) project (ERC GA no. 312514.)
List of abbreviations

Institutions and bodies

AFDI American Freedom Defense Initiative
AG Spanish abbreviation for ‘Asamblea General’
Aladi Spanish abbreviation for ‘Asociación latino-americana de
integración’
APRA Spanish abbreviation for ‘Allianza Popular Revolucionaria
Americana’
ASIL American Society of International Law
CACJ Central American Court of Justice
CAJP Spanish abbreviation for ‘Comisión de Asuntos Jurídicos y
Políticos’
CAN Spanish abbreviation for ‘Comunidad Andina’
CARU Joint Commission of the River Uruguay
CEESI Spanish abbreviation for ‘Comisión Especial para Estudiar el
Sistema Interamericano y Proponer Medidas para su
Reestructuración’
CELAC Community of Latin American and Caribbean States
CIJ French abbreviation for ‘Cour internationale de justice’/
Spanish abbreviation for ‘Corte Internacional de Justicia’
CLCS Commission on the Limits of the Continental Shelf
CMB Celulosas de M’Bopicuá S.A.
CP Consejo Permanente
DINAMA Uruguayan National Directorate for the Environment
ECHR European Court of Human Rights
EIA Environmental Impact Assessment
ELSI Elletronica Sicula S.p.A.
ENCE Spanish abbreviation for ‘Empresa Nacional de Celulosas de
España’
EWCA Civ Court of Appeal of England and Wales, Civil Division
GA General Assembly
GTAN Spanish abbreviation for ‘Grupo Técnico de Alto Nivel’
ILA International Law Association
xiv List of abbreviations

ICJ International Court of Justice

IDI French abbreviation for ‘Institut de Droit International’
ILC International Law Commission
IMF International Monetary Fund
ISIS/ISIL Islamic State of Iraq and Syria/Islamic State of Iraq and the
Levant
ITLOS International Tribunal for the Law of the Sea
I.U.S.C.T. Iran–US Claims Tribunal
Mercosur Spanish abbreviation for ‘Mercado Común del Sur’
MRE Spanish abbreviation for ‘Ministerio de Relaciones
Exteriores’/Portuguese abbreviation for ‘Ministério de
Relações Exteriores’
OAS Organization of American States
ODECA Organización de Estados Centroamericanos (Organization
of Central American States)
OEA Spanish abbreviation for ‘Organización de los Estados
Americanos’
PCA Permanent Court of Arbitration
PCIJ Permanent Court of International Justice
SC Security Council
SDN French abbreviation for ‘Société des nations’
SICA French abbreviation for ‘Système d’intégration centraméri-
cain’/Spanish abbreviation for ‘Sistema de la Integración
Centro Americana’
SRE Spanish abbreviation for ‘Secretaría de Relaciones
Exteriores’
SRFC Sub-Regional Fisheries Commission
TAHM Spanish abbreviation for ‘Tribunal arbitral ad hoc del
Mercosur’
UN United Nations
UNC United Nations Charter
UNCLOS United Nations Convention on the Law of the Sea
UNGA United Nations General Assembly
UNITAR United Nations Institute for Training and Research
VCCR Vienna Convention on Consular Relations
WHO World Health Organization

Journals, publishers and conventions

ACDI/CYIL Anuario Colombiano de Derecho Internacional/
Colombian Yearbook of International Law
AFDI Annuaire français de droit international
AJIL American Journal of International Law
ARSIWA Articles on the Responsibility of States for Internationally
Wrongful Acts
 List of abbreviations xv

BYIL British Yearbook of International Law

CEDIN Centro de Direito Internacional
CUP Cambridge University Press
EJIL European Journal of International Law
Eur J Int Law European Journal of International Law
FILJ Fordham International Law Journal
HHRJ Harvard Human Rights Journal
ICLQ International and Comparative Law Quarterly
IFC Institución Fernando El Católico
I.U.S.C.T.R. Iran-US Claims Tribunal Reports
LJIL Leiden Journal of International Law
LOSC Law of the Sea Convention
MPEPIL Max Planck Encyclopedia of Public International Law
OUP Oxford University Press
PUF Presses Universitaires de France
RCADI Recueil des cours de l’Académie de droit international
Rec. Recueil
RGDIP Revue générale de droit international public
RIAA Reports of International Arbitral Awards
RTNU Recueil des traités des Nations Unies
UNJYB United Nations Juridical Yearbook
UNTS United Nations Treaty Series
VCLT Vienna Convention on the Law of Treaties
YbILC Yearbook of the International Law Commission
ZaöRV Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht
List of maps

20.1 The maritime boundary lines claimed by Peru and Chile,

respectively 238
20.2 Course of the maritime boundary 238
Editors’ introduction

Latin America1 prides itself in being a peaceful region. Historically resistant

to any kind of external interference, Latin American states have tended
toward the principles of national sovereignty, non-intervention, and peaceful
settlement of disputes, which are deeply embedded in their political and
juridical cultures. These principles were recognised in the agreements that
established the Organization of American States (OAS) in 1948 and have
also been codified in the OAS Charter. Moreover, they are strongly rooted
in the region’s diplomatic and legal cultures, as enshrined in many Latin
American constitutions.
While Latin American states have always opted for the peaceful settlement
of disputes, they have more generally contributed to the development of
international law from this perspective. Their universal presence at the 1907
Second Hague Peace Conference and contribution to the work and outcome
of the conference are well known: they encouraged the recourse to arbitra-
tion and non-use of force, the principle of juridical equality of states, the
strengthening of international jurisdiction, and the direct access of individu-
als to international justice.2 During the 1907 Hague Conference, these states
advanced the idea that international courts should not operate on the exclu-
sive basis of the consent of disputing states.3

1 Latin America is here understood as to cover all American states resulting from Spanish,
Portuguese, and French colonization. According to Liliana Obregón, ‘the concept of
“Latin America” emerged in the second half of the nineteenth century as a creole adapta-
tion of French “Latinism” in response to the USA’s expansionist policy’ (Obregon, Liliana
(2016) ‘Identity formation, theorization and decline of a Latin American international
law’. In: Wojcikiewicz Almeida, Paula and Sorel, Jean-Marc (eds) Latin America and the
International Court of Justice: Contributions to International Law, Oxford: Routledge, pp.
3–14).
2 Trindade, Antônio A. Cançado (2008) ‘The presence and participation of Latin America at
the Second Hague Peace Conference of 1907’. In: Daudet, Yves, Topicality of the 1907
Hague Conference, The Second Hague Peace Conference, Leiden/London: Martinus Nijhoff
Publishers.
3 Société des Nations/CPJI, Documents au sujet de mesures prises par le Conseil de la
Société des Nations aux termes de l’article 14 du Pacte et de l’adoption par l’Assemblée du
Statut de la Cour permanente, Geneva, SDN/CPJI, 1920, p. 142. Dissenting opinion of
xviii Editors’ introduction

The old debate regarding Latin American international law also demon-
strates the region’s willingness to influence the development of norms in the
field of international law.4 Concretely, Latin Americans have advanced recog-
nition of the compulsory jurisdiction of the Permanent Court of
International Justice (PCIJ) and the future International Court of Justice
(ICJ). The ingenuous formula, known as ‘declarations recognizing the juris-
diction of the Court as compulsory,’ was proposed by the Brazilian jurist
Raul Fernandes in order to overcome a deadlock within the Advisory
Committee of Jurists responsible for drafting the Statute of the PCIJ. The
referred formula contributed to attracting the acceptance of compulsory
jurisdiction of the PCIJ by a total of 45 states and was firmly supported by
Latin American states. The same Latin American formulation of 1920 was
maintained in the present Statute of the ICJ due to the intransigent position
of the more powerful states.
It followed that after the Second World War, several international organi-
zations were created in Latin America, such as the OAS, the Central
American Integration System (SICA), the Andean Community (CAN), the
Common Market of South America (Mercosur), and, more recently, the
Union of South American Nations (UNASUR). Most of these organizations
developed their own dispute settlement mechanisms, enhancing the region’s
tradition of peaceful settlement of disputes. The same rule applies to the UN,
under the auspices of which Latin American states have been strongly active.
Indeed, these states are involved in 29 cases since the creation of the ICJ,
most of which concern maritime and territorial disputes.
In this context, the present book is focused on the contribution of Latin
America to the ICJ since these states tend to submit their disputes to the
World Court, even though other regional or sub-regional dispute settlement
systems are eminently capable of solving matters. The fact that Latin
American states are currently the most active litigants before the Court
shows their belief in it as a legitimate public authority that not only resolves
disputes among states but also, more generally, contributes to the develop-
ment of international law.5 The project then conceives of the Court as a

Judge Cançado Trindade, Application of the International Convention on the Elimination

of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary
Objections, Judgment, I.C.J. Reports 2011, p. 70.
4 Lorca, A. B. (2006) ‘International Law in Latin America or Latin American International
Law? Rise, Fall, and Retrieval of a Tradition of Legal Thinking and Political Imagination’,
Harvard International Law Journal, 47.1: 284–305.
5 For an assessment of the idea of international public authority, see Von Bogdandy, Armin
and Venzke, Ingo (2012) ‘In Whose Name? An Investigation of International Courts’
Public Authority and Its Democratic Justification’, The European Journal of International
Law, 23.1: 7–41; Von Bogdandy, Armin and Venzke, Ingo (2012) ‘On the Functions of
International Courts: An Appraisal of Their Burgeoning Public Authority’, ACIL Research
Paper No 2012-10: 1–29; Von Bogdandy, Armin and Venzke, Ingo (eds) (2011) ‘Beyond
Dispute: International Judicial Institutions as Lawmakers’, Special Issue, German Law
Journal, 979: 12; Von Bogdandy, Armin, Dann, Philipp, and Goldmann, Matthias (2008)
 Editors’ introduction xix

multifunctional actor responsible for the protection and development of the

international community and its values.6
This contemporary approach to international judicial institutions goes
beyond the traditional understanding that depicts international courts only as
adjudication bodies limited to the bilateral dispute settlement between states.
It includes their contribution to social interaction with the intention of taking
into account other important functions that international courts currently
perform in order to achieve international adjudication’s full potential, which
is the realization of justice.7 Dispute settlement remains an important contri-
bution, as the Court is responsible for the pacific settlement of international
disputes (Chapter VI of the UN Charter). However, this traditional function
cannot solely capture the full relevance of ICJ decisions since there are
disputes that may continue even after a decision has been rendered.8
The Nicaragua case represents a famous example of how the function of
international adjudication at the ICJ is not limited to resolving disputes
between states. Although unable to reach a settlement between Nicaragua
and the US, this judgment exhorted the principle of prohibition of the use
of force and restricted the possibility of states in acting on the right to self-
defence.9 This interpretation reaches beyond the individual case submitted to
the ICJ, serving as a precedent to future case law. It also illustrates the
Court’s influence on the development of international law and its capability
to act as an ‘agent’ of legal development.10
The Avena case also demonstrates that non-compliance with ICJ judg-
ments does not compromise its contribution to international law: the case
has indeed contributed to clarify the meaning of ‘without delay’ under the
Vienna Convention on Consular Relations and has been considered as a
turning point in the discussions of how international law and domestic law
interface, and what place international law occupies within the US legal

‘Developing the Publicness of Public International Law: Towards a Legal Framework for
Global Governance Activities’, German Law Journal, 9: 1375. See also: Lauterpacht, Sir
Hersch (1958) The Development of International Law by the International Court, London:
Stevens & Sons Limited; Trindade, Antônio A. Cançado (2010) International Law for
Humankind, Towards a New Jus Gentium, Leiden/Boston: Martinus Nijhoff Publishers.
6 Von Bogdandy, Armin and Venzke, Ingo (2012) ‘In Whose Name? …’, op. cit., p. 38.
7 Functions can be understood as contributions of the particular ‘institution or its charac-
teristic activity to a larger whole’ (Von Bogdandy, Armin and Venzke, Ingo (2014) ‘In
Whose Name? A Public Law Theory of International Adjudication’, Oxford: Oxford
University Press, p. 11). See also Von Bogdandy, Armin and Venzke, Ingo (2012) ‘On the
Functions of International Courts…’, op cit., pp. 4–5.
8 Ibid. p. 15.
9 Papastavridis, Efthymios (2016) ‘Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America)’. In: Wojcikiewicz Almeida, Paula and
Sorel, Jean-Marc (eds), op. cit., pp. 211–222.
10 See Tams, Christian, and Tzanakopoulos, Antonious (2010) ‘Barcelona Traction at 40:
The ICJ as an Agent of Legal Development’, Leiden Journal of International Law, 23: 782.
See also Lauterpacht, Sir Hersch (1958) The Development of International Law by the
International Court, London: Stevens & Sons Limited.
xx Editors’ introduction

system.11 In the case concerning Territorial and Maritime Dispute

(Nicaragua v. Colombia), although Nicaragua introduced a new claim
against Colombia shortly before the effective denunciation of the Pact of
Bogota by Colombia, this case allowed the ICJ to address and analyze, for
the first time in the history of the international settlement of disputes, the
applicable law to the delimitation of the extended continental shelf between
an UNCLOS State Party (Nicaragua) and a non-State Party (Colombia).12
These are only examples among others in which Latin American cases clearly
prompted the material development of international law.
It is worth emphasizing that the Latin American contribution is not
limited to material international law. Indeed, the Court’s procedural rules on
third party intervention (discretional intervention and the right to intervene)
and on demands for judicial interpretation must be interpreted more broadly.
These rules are the product of the Court’s own making, being an important
source of its independence.13 By promoting wider participation in judicial
proceedings before the Court, Latin American states recognized that the
effects created by judgments go far beyond the parties immediately involved
in a particular dispute. They finally contribute to reasserting law’s validity
and to expanding the Court’s traditional function.
Ultimately, the Court’s decisions have significantly affected the region,
allowing the effects of international adjudication on domestic governance to
become visible.14 This is particularly applicable to Latin American cases
before the ICJ as the Court’s decisions have significantly affected the course
of regional relations and the construction of a regional legal framework. The
assessment of the impact of ICJ’s decisions on the region includes the eval-
uation of how governments, parliaments, national courts, and other
domestic actors and institutions interact with the authority of ICJ decisions.
The book makes accessible for the first time an up-to-date systematic and
comprehensive analysis of the Latin American contribution to international
law and to the peaceful settlement of disputes before the ICJ from a
multifunctional perspective. It includes the historical contribution of the
region to the development of international law through the emergence of
international jurisdictions (Part I), as well as both the procedural (Part II)
and material contribution (Part III) of the cases submitted by or against
Latin American states to the ICJ to the development of international law.

11 Romano, Cesare (2016) ‘Avena and Other Mexican Nationals (Mexico v. United States of
America), 2003’. In: Wojcikiewicz Almeida, Paula and Sorel, Jean-Marc (eds), op. cit., pp.
183–194.
12 Tassin, Virginie (2016) ‘Territorial and Maritime Dispute (Nicaragua v. Colombia)’. In:
Wojcikiewicz Almeida, Paula and Sorel, Jean-Marc (eds), op. cit., pp. 225–236.
13 Sorel, Jean-Marc (2009) ‘International Courts and Tribunals, Procedure’. In: R. Wolfrum
(ed.), Max Planck Encyclopaedia Public International Law; Oxford University Press, online
(www.mpepil.com), 2008, 11p. Von Bogdandy, Armin and Venzke, Ingo (2012) ‘In
Whose Name? …’, op. cit., p. 25.
14 Von Bogdandy, Armin and Venzke, Ingo (2014) ‘In Whose Name? …’, op. cit., pp. 21–22.
 Editors’ introduction xxi

This regional approach was explored by contributors coming from diverse

continents and backgrounds who were invited to participate in this project.
The analysis undertaken by the invited contributors, be they academics or
practitioners, took into account two complementary aspects: the procedural
or material contribution of the cases to international law and their impact on
the region. It intends to show how Latin American states have become
increasingly committed to the peaceful settlement of disputes and to the
promotion of international law through adjudication. It culminates with an
expansion of the traditional understanding of the function of the ICJ by
Latin American states, including an analysis of existing challenges in the
region.

Paula Wojcikiewicz Almeida

Getulio Vargas Foundation Law School, Rio de Janeiro, Brazil

Jean-Marc Sorel
École de droit de la Sorbonne, Paris, France
Acknowledgements

I would like to first thank Dr. Antônio Augusto Cançado Trindade, judge at
the International Court of Justice, for his constant guidance, personal
attention and constructive suggestions during the planning and development
of this book.
I am also grateful to Dr. Karin Oellers-Frahm, Senior Research fellow at
the Max Planck Institute for Comparative Public Law and International Law
for her constant encouragement and full support for the conception of this
Project. Her willingness to give her time so generously has been very much
appreciated. I would also like to express my very great appreciation to Dr.
Armin von Bogdandy, Director at the Institute, and Mariela Morales
Antoniazzi, Senior Research fellow of the referred institute for making it
possible for me to work as a post-doctoral visiting fellow at the Institute
where I devoted most of my time researching for this project. My grateful
thanks are also extended to Dr. Anne Peters, Managing Director of the
referred Max Planck Institute, for her advice and enthusiastic encouragement
of this research.
I would also like to express my gratitude to Dr. Eduardo Valencia-Ospina,
Member of the International Law Commission and former president of the
Latin American Society of International Law (LASIL), for moderating a pre-
launch event devoted to this book during the LASIL Biennial Conference, in
August 2016, in Santiago del Chile.
Finally, I wish to warmly thank all contributors for their full commitment
and genuine interest in this project.
Paula Wojcikiewicz Almeida
Part I
The historical contribution
of Latin America to the
development of international
law through adjudication
This page intentionally left blank
1 Identity formation, theorization
and decline of a Latin American
international law
Liliana Obregón1

I Latin American proposals for international justice

Many Latin American heads of state, diplomats, and lawyers actively partici-
pated in the development of a permanent system of international justice.
During the 1907 Hague Conference, half of the forty-four states were from
the region and eager to promote an international court of justice.2 However,
Ruy Barbosa, Brazil’s Minister of Foreign Affairs and head of his delegation,
criticized the ‘Great Power representation’ proposal for the court because by
institutionalizing world hierarchies, it violated the equality principle and
would lead to decision deadlock and an arms race.3 Barbosa’s position
brought him regional acclaim and the ‘Hague Eagle’ nickname.4 After that,
most Latin Americans states ratified the 1907 Convention for the Pacific
Settlement of International Disputes whereas no other non-European states
ratified it until after World War II.5
Soon thereafter, the Central American Peace Conference proposed to
establish a Central American Court of Justice as a permanent tribunal with
compulsory jurisdiction, continuous functions, and equal representation of
justices from each state.6 Eleven Latin American states were part of the
thirty-two League of Nations’ founders, and six (Argentina, Chile,
Colombia, Paraguay, El Salvador, and Venezuela) were invited to accede the

1 The author thanks Nicolás Forero-Villarreal for research and editing assistance.
2 W. Hull, The Two Hague Conferences and Their Contributions to International Law,
Boston: Ginn and Cpy, 1908, p. 14.
3 R. Barbosa, ‘The Equality of Sovereign States,’ The Independent 64, 1907, 75; A. Becker-
Lorca, Mestizo International Law, Cambridge: CUP, 2015, pp. 158–164.
4 S. Dennison, Joaquim Nabuco: Monarchism, Panamericanism and Nation-Building in the
Brazilian Belle Epoque, Bern: Peter Lang, 2006, p. 180.
5 Convention for the Pacific Settlement of Disputes, 18 October 1907, 36 US Stat. 2259,
UKTS 1910 No. 6.
6 J. Esquirol, ‘Latin America’, in B. Fassbender, A. Peters (ed.) The Oxford Handbook of the
History of International Law, Oxford: OUP, 2012, pp. 553–572; M. Hudson, ‘The
Central American Court of Justice,’ AJIL 26, 1932, p. 761.
4 Liliana Obregón

covenant.7 Latin America had the highest regional representation (20/51) of

the UN founding members in which they continued to promote a perma-
nent court of justice.8
Regional solidarity has been a constant since colonial times, as Latin
Americans often used their ideas of exceptionalism in response to external
domination.9 The continuous reconstruction of identities allowed for a vari-
ety of projects, including a regional perspective of international law, in which
Latin Americans searched for inclusion despite the discipline’s
Eurocentrism.10 This chapter reviews the stages of identity (nineteenth
century) and theorization and decline (twentieth century) of a Latin
American international law.

II Early nineteenth century: Spanish Americans and the

law of nations
Immanuel Kant’s ‘On Perpetual Peace’ (1795) argued for a confederation of
states as a solution to the problem of war, an idea taken by independence
leader Simón Bolívar who in 1815 wrote about Spanish American unifica-
tion.11 In 1824, Bolívar sent out invitations for the 1826 Panama Congress
to bring the former Spanish colonies together as an ‘union, league and
confederation,’ an ‘eternal’ government that would celebrate Columbus’
world, make diplomatic alliances and international treaties, and provide
advice and mediation for regional conflicts in a ‘society of sister nations.’12

7 Annex The Versailles Treaty June 28, 1919: Part I. Online. Available at:
http://avalon.law.yale.edu/imt/parti.asp
8 International courts, nonetheless, are often viewed as politically motivated despite the non-
national basis selection criteria for judges. See, G. Hernández, The International Court of
Justice and the Judicial Function, Oxford: OUP, 2014, p. 6.
9 E. Dussel, ‘Philosophy in Latin America in the Twentieth Century: Problems and
Currents,’ in E. Mendieta (ed.) Latin American Philosophy Currents, Issues, Debates,
Bloomington: Indiana University Press, 2003, p. 15. In a recent work, Dussel extended the
time and geography of Latin American philosophy from 1300 to include the Caribbean and
U.S. Latinos. E. Dussel, E. Mendieta and C. Bohórquez, El pensamiento filosófico latinoa-
mericano, del Caribe y “latino” (1300–2000), México: Siglo XXI, 2011.
10 L. Lund, ‘Barbarian Theorizing and the Limits of Latin American Exceptionalism,’
Cultural Critique 47, 2001, 54–90, 76.
11 I. González Niño, Simón Bolívar, precursor del derecho internacional americano, Bogotá:
Instituto Colombiano de Estudios Latinoamericanos y del Caribe, 1985, pp. 1–131; M.
Mackenzie, Los ideales de Bolívar en el derecho internacional americano, Bogotá: Biblioteca
del Ministerio de Gobierno: Colección Bolivariana, 1955, pp. 1–548; J.M. Torres-Caicedo,
Unión latino-americana, pensamiento de Bolívar para formar una liga americana. Su
origen y sus desarrollos (…), Paris: Rosa y Bouret, 1865, pp. 1–385; J.M. Yepes, Del
Congreso de Panamá a la Conferencia de Caracas, 1826–1954: el genio de Bolívar a través
de la historia de las relaciones interamericanas, Caracas: Cromotipo, 1955.
12 A. De la Peña y Reyes, El Congreso de Panamá y algunos otros proyectos de unión hispano-
americana, México: Publicaciones de la Secretaría de Relaciones Exteriores, 1926, pp.
1–262; G.A. De la Reza, El Congreso de Panamá de 1826 y otros ensayos de integración lati-
noamericana en el siglo XIX: estudio y fuentes documentales anotadas, México:
 Latin American international law 5

For Bolívar, the Panama Isthmus was an ideal venue because it was situated
‘midway between Mexico City and Buenos Aires;’ had symbolic value as the
‘centre of the world,’ and, was a geographic and political ‘parallel to the
Isthmus of Corinth.’13 Bolívar’s union protected a fragile independence in
face of still-threatening Spain and uncertain Europe as the congress was
‘destined to form the widest, most extraordinary … league ever appeared to
this day on earth … The relations of political societies will receive a code of
public law that will rule universal behaviour … the New World will be consti-
tuted by independent nations, bound together by a common law defined by
their external relations.’14
Although the Panama Congress never achieved Bolívar’s expectations,
such a regional utopia may shed light into what I have described elsewhere
as a ‘creole legal consciousness’ that allowed for the building of a Latin
American international law. By the time of independence, close to 17 million
people, inheritors of three hundred years of a complex caste system of polit-
ical, legal, and social stratification, lived in the former Spanish colonies.15 The
legal and political elite was composed of Spanish and creole (criollo) func-
tionaries. In the sixteenth century, criollo was the colonizers’ pejorative term
for a person born in America of Spanish parents, considered as an impure or
defective European due to suspect mixture with the indigenous or slave
population. The interactive and dialogic character of the criollo makes it
misleading to define it as a racial or biological category, monolithic subject,
or homogenous elite. Therefore, I prefer to ascribe creoles a social and legal
standing because – like other colonial subjects – they were defined in legal
terms through separate jurisdictions, privileges, and restrictions. As Spanish
Americans, creoles were a minority of the Spanish Republic that had access
to education and land ownership. Should other social conditions be met
(such as honour, purity of blood, legitimacy of birth, family and business
connections), criollos were considered worthier than castas (mixed peoples),

UNAM-Azcapotzalco y Ediciones y Gráficos Eón, 2006; E.Vieira Posada, La integración

de América Latina: del Congreso Anfictiónico de Panamá en 1826 a una comunidad
Latinoamericana o Sudamericana de Naciones en el año 2010, Bogotá: Editorial Univ.
Javeriana, 2004, p. 43.
13 S. Bolívar, Coleccion de documentos relativos a la vida pública del libertador de Colombia y
del Perú para servir a la historia de la independencia del suramérica: Tomo Tercero, Carácas:
Impresa de Devisme Hermanos, 1826, p. 178.
14 G.A. De la Reza, ‘Simon Bolívar: Un pensamiento sobre el Congreso Anfictiónico de
Panamá’, in G.A. De la Reza (ed.) Documentos sobre el Congreso Anfictiónico de Panamá,
Carácas: Fundación Biblioteca Ayacucho/Banco Central de Venezuela, 2010, pp. 84–5.
15 Though numbers should be viewed with caution considering the limits of census and resist-
ance to racial categories 7.5 million Indians, five million castes (or mestizos, ‘mixed’
peoples), three million creoles, and 800,000 slaves of African descent were said to live in
the region. See, M. Lucena Giraldo, A los cuatro vientos: las ciudades de la América
hispánica, Madrid: Marcial Pons Historia, 2006, p. 245; D.J. Robinson (ed.), ‘Social Fabric
and Spatial Structure in Colonial Latin America,’ in Dellplain Latin American Studies 1,
Department of Geography, Syracuse University, 1979, pp. 17–22.
6 Liliana Obregón

Indians (as part of the ‘Republic of Indians’), and slaves or free blacks.
Creoles viewed themselves as persons of Spanish descent and of ‘white’
culture and physical presence, but also as American patriots.16
By the independence period, creole patriotism continued to permeate the
elite’s regional identity. Bolívar best explained the creole’s dilemma in a
famous phrase:

We … are not Indians nor Europeans, but a middle species between the
legitimate owners of the country, and the Spanish usurpers, in short, we
being Americans by birth, and our rights derived from Europe, we have
to dispute this land against the natives of this country and against the
invaders … so we are in the most extraordinary and complicated case.17

Bolívar viewed the creole minority as natural leaders, indigenous peoples as

litigious opponents of land rights, Europeans as potential invaders, and he
did not acknowledge mestizos or blacks as citizens, despite constituting the
majority population.18 Thus, the idea of a union based on a common origin,
customs, and language was an extraordinary utopia but Bolívar proceeded to
send invitations to Bolivia, Central America, Chile, Colombia, Empire of
Brazil, Mexico, Peru, and the United Provinces of Río de la Plata.19 The
US,20 Great Britain, and the Netherlands were invited as observers.21

16 On the construction of the category of the creole; see E. Kuznesof, ‘Ethnic and Gender
Influences on Spanish Creole Society in Colonial Spanish America,’ Colonial Latin
American Review 4, 1995, pp. 153–68; B. Lavalle, Las promesas ambiguas: ensayos sobre el
criollismo colonial en los Andes, Lima: Pontificia Universidad Católica, 1993; J.A. Mazzotti
(ed.), Agencias criollas: la ambigüedad ‘colonial’ en las letras hispanoamericanas,
Pittsburgh: Instituto Internacional de Literatura Iberoamericana, 2000. See also
L. Obregón, ‘Between Civilisation and Barbarism: Creole interventions in international
Law,’ Third World Quarterly 27, 2006, 818–819.
17 S. Bolívar, ‘Contestación de un americano meridional a un caballero de esta isla (Jamaica)’,
in Coleccion de documentos relativos à la vida pública del libertador de Colombia y del Perú
para servir a la historia de la independencia del suramérica: Tomo Vigésimo Primero,
Carácas: Impresa de GF Devisme, 1830, p. 21.
18 Mestizo was a racial and legal category used to describe people of mixed (white, indigenous,
African) ancestry.
19 D. Bushnell, Simón Bolívar: hombre de Caracas, proyecto de América: una biografía, Buenos
Aires: Editorial Biblos, 2002, p. 130.
20 Letter of Henry Clay, Secretary of State, to Richard C. Anderson, US Minister to
Colombia, in W.R. Manning (ed.), Diplomatic Correspondence of the US Concerning the
Independence of the Latin-American Nations, New York: OUP, 1925, Document 145, p.
253. For a discussion on US participation in Panama, see J.J. Malanson, ‘The
Congressional Debate over US Participation in the Congress of Panama, 1825–1826:
Washington’s Farewell Address, Monroe’s Doctrine, and the Fundamental Principles of
U.S. Foreign Policy,’ Diplomatic History 30, 2006, 813–838.
21 J. Schoonhoven and C. Tymen De Jong, ‘The Dutch Observer at the Congress of Panama
in 1826’, The Hispanic American Historical Review 36, 28–37. British citizens were invited
to support the union through their ‘character and habits’ and received commercial incen-
tives and equal citizenship. G. De la Reza, op. cit., p. 84.
 Latin American international law 7

Haiti’s exclusion from the Congress of Panama gives further insight into
creole identity. In 1816 three decades into the revolution, and ten years after
its declaration of independence, Haiti’s first president, Alexandre Pétion,
supplied Bolívar with men, ships, money, guns, and a printing press in return
for his vow to free all slaves.22 Though Bolívar recruited slaves in exchange
for freedom23 and honoured Pétion as ‘the author of our independence,’24 he
never complied with his promise.25 The Haitian government expected an
invitation to Panama, but Bolívar and other creoles feared that an implied
recognition would promote slave uprisings across the continent.
Six years after the Panama Congress, the Venezuelan, Andrés Bello, wrote
the first international law treatise published in the Americas, under the title
Principios del Derecho de Gentes. The book was later titled Principios del
Derecho Internacional in its second (1844) and third (1864) editions. In this
book, Bello appropriated European and US texts and rewrote, edited, and
organized it with a Spanish American perspective as part of his region-build-
ing project.26 Bello’s treatise was the most reprinted, distributed, plagiarized,
and taught in the Spanish-speaking world and anticipated similar courses in
Europe or the US.27
Bolívar, Bello, and other creole’s efforts to promote regional perspectives
of the law of nations or international law could be understood as belonging
to a ‘creole legal consciousness,’ or a set of ideas on the law shared by creole

22 S. Bolívar, ‘Latin-American Correspondence: Simon Bolívar and Alexandre Sabes Pétion,’

Phylon 7 (2), 1946, 196.
23 S. Bolívar, ‘Decreto sobre libertad de los esclavos – Carúpano, 2 de junio de 1816,’ in
V. Lecuna (ed.), Bolívar, Simón: Proclamas y discursos del Libertador, 1811–1830, Los
Teques: Biblioteca De Autores y Temas Mirandinos, 1983, pp. 148–149.
24 S. Bolívar, Carta al General Alejandro Pétion, Feb 8, 1816, Escritos del Libertador, Vol 9,
Sociedad Bolivariana de Venezuela: Caracas, p. 13.
25 None of the states represented in the Panama Congress abolished slavery. Slavery and the
slave trade lasted the nineteenth century. Mexico abolished slavery in 1829, Argentina in
1853, Peru in 1855, and Brazil in 1888. Bolívar’s territories (Colombia, Panama, Ecuador,
and Venezuela) abolished slavery between 1851 and 1854, but paid compensation to slave
owners.
26 I. Jaksic, Andrés Bello: la pasión por el orden, Santiago de Chile: Editorial
Universitaria/Imagen De Chile, 2001, p. 323; L. Obregón, ‘Construyendo la región
americana: Andrés Bello y el derecho internacional,’ in S.B. González and J. Poblete (eds),
Andrés Bello y los estudios latinoamericanos, Pittsburgh: Instituto Internacional de
Literatura Iberoamericana, 2009, pp. 189–18.
27 In France, Germany, and England the first international law courses were taught in the
second half of the nineteenth century, while in the US they began with Yale in 1846,
Harvard in 1863, and Columbia University in 1865. By 1907, ten of the 81 law schools in
the US taught international law, a course which was considered a ‘luxury’ and continues to
be an elective course in most US law schools. M. Koskenniemi, The Gentle Civilizer of
Nations: The Rise and Fall of International Law 1870–1960, Cambridge: CUP 2001; J.M.
Raymond and B.J. Frischholz, ‘Lawyers Who Established International Law in the US,
1776–1914,’ AJIL 76, 1982, 802–29.
8 Liliana Obregón

lawyers in the post-independence period.28 A ‘creole legal consciousness’ is

characterized by the creoles’ belief of superiority; a legacy of Indigenous and
Spanish law; an understanding of Roman law as their historical and ‘civilized’
roots; and a practice of the law as in the use of foreign sources to solve local
problems.29
Fundamental to the development of a creole legal consciousness in the
nineteenth century was the appropriation of the European discourse of civil-
ization, which expressed the idea of progress and the perfectibility of man as
a universal ideal achieved through law and institutions in opposition to
barbarism.30 In order to avoid exclusion from the rights assigned (by Europe)
to members of the ‘community of civilized nations’, creoles demonstrated a
desire to ‘improve civilization’ through legal, economic, religious, educa-
tional, and social policies.31

III Late nineteenth century: Latin American professionals

of international law
The global scenario changed mid-century. Until then, the creole elite consid-
ered the US as a successful model of statehood that inspired new
constitutions, forms of government, and adopted the Monroe doctrine
against European imperialism.32 However, by mid-nineteenth century, the
Monroe doctrine was used by the US in order to intervene in Mexico
(1848), resulting in the loss of California and Texas. Another major inter-
vention occurred in Nicaragua in 1855 with the purpose of reinstating
slavery and annexing it to the US.
It is no surprise then that the concept of ‘Latin America’ emerged in the
second half of the nineteenth century as a response to US expansionist poli-
cies. French economist Michel Chevalier (1806–79) and Ernest Renan
(1823–92) promoted the idea of Pan-Latinism as a union among ‘Latin’

28 Legal Consciousness is a ‘particular form of consciousness characteristic of advocates of a

social group at a given time’; D. Kennedy, ‘Toward a Historical Understanding of Legal
Consciousness: The Case of Classical Legal Thought in America 1850–1940,’ Research in
Law and Sociology 3, 1980, 24–23.
29 L. Obregón, ‘Completing Civilization: Creole Consciousness and International Law in
Nineteenth-Century Latin America,’ in A. Orford (ed.), International Law and Its Others,
Cambridge: Cambridge University Press, 2006, pp. 247–64.
30 For an extensive conceptual history in international law, see L. Obregón, ‘The Civilized
and the Uncivilized in the History of International Law,’ in B. Fassbender and A. Peters
(eds), op. cit., pp. 917–39.
31 C. Rojas, Civilization and Violence: Regimes of Representation in Nineteenth-Century
Colombia, Minneapolis: University of Minnesota Press, 2001.
32 US constitutionalism spread through A. de Tocqueville, De la démocratie en Amérique,
Paris, 1836, Spanish translation by A.S. de Bustamante, De la democracia en América del
Norte, Paris: Rosa, 1837, which had a broad circulation among creoles, see H.F. Zamudio
(ed.), ‘Función del poder judicial en los sistemas constitucionales Latinoaméricanos,’ in
Latino América: constitución, proceso y derechos humanos, México: Porra, 1988, p. 223.
 Latin American international law 9

states based on the ethnic and cultural categories of European historicism.

Pan-Latinism projected France’s opposition to the continental domination of
Great Britain and the US. At the same time, Pan-Latinism was a geo-
ideological model, used to legitimize France’s expansionist economic
interests and cultural patronage.33 Chevalier argued that France needed to
counter the advance of the ‘Anglo-Saxon race’ because of the imbalance of
power.34 Although Chevalier’s Pan-Latinism defended France’s imperial role,
his description of the former Spanish colonies as part of the ‘Latin family’
found resonance among the creole elite living in Paris.
Chilean diplomat and lawyer, Francisco Bilbao, was one of the first to use
the term ‘Latin America’ and ‘Latin Americans’ in a lecture given before the
diplomatic community in Paris in 1853. Bilbao used ‘Latin America’ as
opposed to ‘Anglo America’ in a manner similar to Chevalier’s description,
but he did not allocate France or any other European nation a role against
US expansionism. Bilbao’s solution was to revive the proposal for a union of
America’s ‘Latin’ peoples against the US threat.35
Bilbao’s conference, like Chevalier’s books, had a major impact on other
creoles. Colombian diplomat José María Torres-Caicedo separated the term
from its connotation with French imperialism and used it in opposition to
US imperialism and in support of a new regional project of unification.36 In
the 1856 poem ‘Las dos Américas,’ Torres-Caicedo glorified Spanish
American unification based on common language, religion, law, and tradi-
tions as a response to US imperialism.37
In a manifesto circulated in Paris, Torres-Caicedo promoted a union of
Central and South America as one nationality that included: a) the same civil
and political rights, regardless of place of birth; b) the adoption of uti posside-
tis rule to define territorial limits; c) the unification of codes, dimensions,
weight, and money; d) the establishment of a single supreme court of justice;
e) a uniform system of postal conventions; f) the binding nature of all public
and private contracts celebrated in America; g) a liberal system of trade; h) a
compulsory education system; i) freedom of conscience and religious toler-
ance; j) common rules for extradition; k) the common defence system; l)
uniform principles applied to commercial treaties, conventions, and nation-
ality; m) no responsibility or equal compensation by legitimate governments

33 J.L. Phelan, El origen de la idea de América, Mexico: Universidad Nacional Autónoma de

México, 1979.
34 For Chevalier, race was a cultural and ethnic concept, rather than a matter of skin colour.
M. Chevalier, ‘Sobre el progreso y porvenir de la civilización’, Revista Española de Ambos
Mundos 1, 1853.
35 F. Bilbao, Obras completas de Francisco Bilbao vol 1, Buenos Aires: Imprenta de Buenos
Aires, 1866, p. 293.
36 J.L. Phelan, op. cit.
37 A.J. Rivadeneira Vargas, El bogotano JM Torres Caicedo (1830–1889): La multipatria lati-
noamericana (Colección Lecturas De Bogotá), Bogotá: Academia Colombiana de Historia,
Alcaldia Mayor de Bogotá, 1989, pp. 61–73.
10 Liliana Obregón

for damage caused to foreigners during civil wars or riots; n) abolition of the
(black, yellow, or white) slave trade; and o) the establishment of a French
newspaper to defend American interests and enforce the laws, resources,
institutions, geography, and topography of the states of Latin America.38
Another early promoter of ‘Latin America’ was the Argentine publicist,
Carlos Calvo, who used the term in the title of his 1862 Spanish American
treaty compilation in defence of the region’s sovereignty and independence.
After Calvo’s publication, the Colombian José María Samper published a
review of Calvo’s book where he argued the creation of a regional interna-
tional law was of the utmost importance as the highest aspiration of
civilization.39 Bilbao, Torres-Caicedo, Calvo, Samper, and many other’s writ-
ings illustrate the late-nineteenth century elite’s appropriation of
international legal discourse. Like many Europeans of their time, Latin
American lawyers were convinced international reform could result from
their society, history, human nature, and institutional modernity.
Nonetheless, though critical of European and US interventions in the
region, they justified the appropriation of indigenous lands as a form of civi-
lizing their own countries and supported the colonization of Africa.

IV Early twentieth century: rise of a ‘Latin American

International Law’ (LAIL)
From 1905 until his death in 1960, Alejandro Álvarez promoted a LAIL
through publications,40 at international organizations, lectures, and scientific
meetings. In a representative text, he argued that Latin American legal unity
was based on different points of view, sui generis problems, distinct interpre-
tations of freedom and sovereignty, a regional homeland with civilizing
origins, a mutual desire to achieve independence, and the same moral,
geographical, material influences, and needs. For Álvarez, Latin Americans
were as civilized as Europeans and possessed a ‘soul’ that was ‘more idealis-
tic, imaginative and cosmopolitan than the Anglo-American.’41
After World War II, Álvarez continued to place Latin America at the fore-
front of international law in his dissenting votes as a judge of the

38 Transcribed in E.R. Pérez Calvo and L.R. Pérez Calvo, Vida y trabajos de Carlos Calvo: Los
Calvo en el Río de la Plata, Buenos Aires: Ediciones Dunken, 1996, p. 152. Calvo argued
that Torres-Caicedo borrowed many of his ideas from his 1862 publication.
39 J.M. Samper (ed.), ‘Derecho público latino-americano,’ in Miscelánea o colección de artí-
culos escogidos de costumbres, bibliografía, variedades y necrología, Paris: Eugene
Vanderhaeghen, 1869, pp. 350–59, published in 1862 in El Comercio de Lima.
40 A. Álvarez, ‘Origen y desarrollo del derecho internacional americano,’ in Tercer Congreso
Científico Latino Americano, Rio de Janeiro, 1905; A. Álvarez, Le droit international
américain: son fondement, sa nature: d’après l’histoire diplomatique des états du nouveau
monde et leur vie politique et économique, Paris: A Pedone, 1910, pp. 1–386.
41 A. Álvarez, International Law and Related Subjects from the Point of View of the American
Continent: a Report on Lectures Delivered in the Universities of the US, 1916–1918 (…) vii,
Washington: Carnegie Endowment for International Peace, 1922, pp. 14, 28, 79.
 Latin American international law 11

International Court of Justice (ICJ). Álvarez, like others in the creole tradi-
tion, recognized the inequalities of power but did not present the Spanish
American states as backward but rather viewed them as more advanced
because the civilization–barbarism dichotomy had been reversed as shown
through European participation in two world wars. However, there was both
adherence and opposition to the Álvarez project. Lawyers such as the
Brazilian diplomat, Manóel de Souza Sá Vianna, opposed LAIL arguing that
common problems or historical experiences did not constitute a basis for a
regional approach; while others, such as the Colombian Jesús María Yepes,
followed and promoted his school of thought in legal arguments, teachings
and publications.

V Late twentieth century: fall of LAIL

By the mid-twentieth century, the belief in a LAIL declined due to the emer-
gence of the UN and other international organizations, the fragmentation of
international law, and the death of Álvarez, its main promoter. Following the
emergence of the Organization of American States (OAS) in 1948, the
region’s unifying approach was more economic with the establishment of
organizations such as the Latin American Free Trade Association (1960),
Central American Common Market (1960), Andean Community of Nations
(1969), Cartagena Agreement (1980), and Mercado Común del Sur
(MERCOSUR) (1986). During the 1980s and 1990s, Latin American
lawyers participated in international organizations and in new fields, such as
international human rights and environmental law, but their efforts were no
longer unified.

VI Conclusion
As this book shows, Latin Americans participated in the development of the
ICJ due to their long-standing belief in the international rule of law. This
chapter highlighted the origins of a regional consciousness (that led to prin-
ciples such as sovereignty, non-intervention, solidarity, and peaceful
settlement of disputes, among others). Fifteen Latin American states partici-
pated in the League of Nations while five judges served on the first
Permanent Court of International Justice (PCIJ). Of the fifty-one founding
members of the UN, twenty were from Latin America and all promoted the
creation of the ICJ. These facts do not mean that Latin American states have
attained utopic unification, because history shows how regional solidarity
ends when economic or political interests are at stake. The region’s enor-
mous disparities in the distribution of wealth and continuous problems of
discrimination on the basis of gender, race, or ethnicity, continue.
Nonetheless, regional consciousness has also been the source of many inter-
national law initiatives, which look to integration and solidarity in support of
a permanent system of justice.
12 Liliana Obregón

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2 The influence of the Latin
American doctrine on
International Law
The rise of Latin American doctrines
at The Hague Academy during the
early twentieth century
Ricardo Abello-Galvis and
Walter Arévalo-Ramírez

The entry of Latin America into the community of nations is one of the
most important facts in the history of civilization. It resulted not only in
widening the field occupied by International Law but also in radically
modifying its character.
(Manuel Alejandro Álvarez. 1909. Judge of the
International Court of Justice (ICJ) from 1944 to 1955)

I Introduction: two meanings of ‘doctrine’ in

International Law
‘Doctrine’ in International Law has two principal meanings. A doctrine is a
particular form of state-practice, unilateral or collective, which the state has
declared through a formal statement of its sovereign will, being political or
legal interest, intention or expected behavior.1
Formal statements by high authorities, carrying the name of the politician
that conceived them (e.g. Drago doctrine) is the usual way of expressing
state doctrine. They are sovereign messages to the international community
regarding the position of the state in particular matters.
On the contrary, ‘the teachings of the most highly qualified publicists’2
(Statute of the ICJ art. 38 (1–d)), are also commonly recognized by inter-
national lawyers as doctrine (doctrina). This, especially in Latin America and
Europe, thanks to their collective roots in civil law, is a legal system in which
the scholar’s interpretation is highly regarded as a subsidiary source of law.3

1 Rubin, A., ‘International Legal Effects of Unilateral Declarations’, AJIL, 71, 1977, 1.
2 United Nations, Statute of the I.C.J., 18 April 1946.
3 Peil, M., ‘Scholarly Writings as a Source of Law: A Survey of the Use of Doctrine by the
International Court of Justice’, Cambridge Journal of International & Comparative Law,
1, 2012, 136.
16 Abello-Galvis and Arévalo-Ramírez

The quest to define the influence of the Latin American doctrine in

International Law must consider both meanings of the word, and recognize
the importance to those that proclaimed, developed and promoted such
doctrines, they being Latin American scholars who, during the early twenti-
eth century, yielded enormous influence in International Law conventions
and academic institutions.
There are early writings by Latin American scholars who have studied the
possibility of a ‘Latin American international law’.4 Such scholars have deliv-
ered their teachings at The Hague Academy of International Law
(hereinafter ‘The Academy’), which since its inception in 1923 is acknowl-
edged as being the most renowned annual International Law course as well
as a unique intercultural legal forum.5
It is from these sources that we intend to recreate the emergence of the
most influential doctrines of International Law that originated in Latin
America and then affected the corpus of International Law.
We will present a brief retrospection of the courses that Latin American
scholars presented at The Academy during the first decades of the twentieth
century. Their intention was to promote Latin American doctrines and
regional concepts on various legal issues, coupled with the continent’s
proposals for the future organization of a growing international community.
Furthermore, we will provide a review of the legal practices and doctrines
that emerged from Latin America during the nineteenth and twentieth
centuries, which grew beyond a regional doctrine and ended up influencing
the development of modern institutions of International Law.
The legal issues found in the courses presented by J. M. Yepes at The
Academy in 19306 and 1934,7 which are among the first legal and historical
efforts of a scholar to demonstrate the influence of Latin American doctrine
in the progressive development of modern International Law, inspire this
review. Along with the earlier works8 of Judge Alejandro Álvarez who was the
principal promoter of the notion of ‘Latin American International Law’.9
Both, pioneers in addressing the same questions that we pose in this publi-
cation on the impact of Latin American doctrines in International Law.

4 Álvarez, A., ‘Latin America and international law’, AJIL 3.2, 1909, 270.
5 Gormley, W. P., ‘The Hague Academy of International Law: A Study in Intercultural
Education and Communication’, Journal of Legal Education, 1961, 512–5.
6 Yepes, J. M., ‘La contribution de l’Amérique latine au développement du droit internatio-
nal public et privé’, RCADI, 32, 1930.
7 Yepes, J. M., ‘Les problèmes fondamentaux du droit des gens en Amérique’, RCADI, 47,
1934.
8 Álvarez, A., ‘Le droit international américain: son fondement-sa nature d’après l’histoire
diplomatique des états du nouveau monde et leur vie politique et économique’, Paris: A.
Pedone, 1910.
9 Álvarez, A., ‘Latin America and International Law’, AJIL 3.2, 1909, 269–353.
 Latin American doctrine on International Law 17

II Regional doctrines at The Hague during the first half

of the twentieth century
The impact following the participation of Latin American States in interna-
tional conferences during the first half of the twentieth century was
undeniable. A reflection of such legal influence was the presence of Latin
American scholars, as well as diplomats in the first courses of The Academy.
This period is considered the golden age of Latin American international
legal thinking prior to the decline of the movement in the second half of the
century.10
From 1923 to 1947, the most influential legal scholars of the region regu-
larly visited The Hague and lectured for the Academy’s annual courses. They
shared the influential legal doctrines that Latin America had to offer with the
world, proving to its interlocutors that their history of independence had
created a regional legal consciousness of its own.11

A. Peaceful settlement of disputes and the need of a World Court

During the first course of The Academy in 1923, Francisco León de La
Barra, former Secretary of State for Foreign Relations and former President
of Mexico (1911), delivered a course on pacific settlement of disputes,12 the
first of its kind at The Academy. It reflected the views of Latin American
states regarding dispute resolution, which were later included in instruments,
such as The Pact of Bogotá.
Francisco León de La Barra was a pioneer in asserting that despite the rele-
vance of arbitration for regional disputes during the nineteenth century,13 in
topics such as international boundaries and sovereign debt,14 the progression
to this was the establishment15 of a permanent world court.

10 Lorca, A. B., ‘International Law in Latin America or Latin American International Law-
Rise, Fall, and Retrieval of a Tradition of Legal Thinking and Political Imagination’,
Harvard International Law Journal, 47, 2006, 283.
11 Obregón, L., ‘Construyendo la región americana: Andrés Bello y el derecho internacional’,
La idea de América en el pensamiento ius internacionalista del siglo XX., Instituto Fernando
el Católico, IFC, 2010.
12 De La Barra, F., ‘La médiation et la conciliation internationales’, RCADI, 1, 1923,
553–68.
13 Summers, L., ‘Arbitration and Latin America’, California Western International Law
Journal, 3, 1972, 1.
14 For example, the arbitrations regarding borders between Colombia and Venezuela, and
between Guatemala and Honduras: Scott, J., ‘The Swiss Decision in the Boundary Dispute
between Colombia and Venezuela’, AJIL, 16.3, 1922, 428–31.
15 De La Barra, F., ‘La médiation et la conciliation internationales’, RCADI, 1, 1923,
563–65.
18 Abello-Galvis and Arévalo-Ramírez

B. The Monroe Doctrine, self-determination and non-intervention

In 1924, Simón Planas-Suárez, Minister Plenipotentiary of Venezuela at The
Hague, Rome, Vienna and Lisbon, delivered a course at The Academy on
the extension of the Monroe Doctrine in South America.16
Planas-Suárez explained how the Monroe Doctrine was put into practice
by Latin American states primarily through diplomacy. He demonstrated
how the doctrine of the United States, in relation to the rejection of foreign
intervention in the region by former colonial powers during the early nine-
teenth century,17 was subsequently embraced and then transformed by the
Latin American countries according to their own views on the definition of
independence and self-determination. These values were later acknowledged
in the Pan-American Conferences that inspired a true Latin American spirit
regarding regional identity in the shape of Pan-Americanism and shared legal
values, which included republicanism and non-intervention.18

C. Diplomacy, arbitration, the urge for international

organizations and Uti Possidetis Iuris
In 1925, Alberto Guani, Uruguay’s Delegate at the League of Nation’s
Council, presented a lecture at The Academy regarding Latin American prac-
tices in foreign relations that proved their international solidarity, from the
time of their independence to their participation in the League of Nations.
According to Guani, the practices that demonstrated the spirit of cooper-
ation that characterized Latin American International Law included: (i) the
early projects of an American Confederation; (ii) the ongoing Pan-American
Conferences; (iii) the expansion of the Drago doctrine for the rejection of
armed intervention as a means of debt collection; and (iv) the collective
proclamation of arbitration as the preferred method of dispute settlement, to
be included in the 1883 Conference in Caracas and promoted by the Latin
American states at the Second Peace Conference at the 1907 Hague
Conference, this the result of their conspicuous participation.19
Guani presented uti possidetis iuris as a Latin American principle that
assisted in the avoidance of regional boundary conflicts thanks to its recog-
nition by most countries in the region,20 and as an effective mechanism to
claim sovereignty over territories inherited from the Spanish Crown admin-
istrative divisions.21 This principle is also accompanied by the Latin American

16 Planas-Suárez, S., ‘L’extension de la doctrine de Monroe en Amérique du Sud’, RCADI,

5, 1924, 267–366.
17 Hughes, C., ‘Observations on the Monroe Doctrine’, American Bar Association Journal,
1, 1923, 559–66.
18 Planas-Suárez, op. cit., p. 299.
19 Hicks, F. C., ‘The Equality of States and the Hague Conferences’, AJIL, 1908, 530–61.
20 Guani, A., ‘La solidarité internationale dans l’Amérique Latine’, RCADI, 8. 1925, 293–
310.
21 Guani, op. cit., p. 310.
 Latin American doctrine on International Law 19

reluctance to embrace res nullius, which helped to avoid conflicts regarding

territorial conquest among the republics in Latin America.22

D. Pan-Americanism, sources, harmonization and codification of

International Law
In The Academy’s course of 1928, Francisco José Urrutia, Colombian
Diplomat and Permanent Representative to the League of Nations Assembly,
who later served as a Permanent Judge of the Permanent Court of
International Justice (PCIJ) at The Hague,23 delivered a lecture regarding
the codification of International Law in Latin America.
Urrutia described the region as a leader in legal codification, breaking
down24 how many principles of International Law were proclaimed by young
Latin American republics over the course of six Pan-American Conferences
and their resulting treaties. These included: condemnation of territorial
conquest (later codified in the Organization of American States [OAS] and
UN Charters),25 the naturalization of foreign individuals, human rights, navi-
gable international watercourses, reduction of armed forces, ius in bellum
and the duties and rights of states in the event of civil strife. The region also
advanced in terms of the codification of private International Law,26 and the
ideal of a Pan-American Union that would later lead to the OAS, the need
for a permanent World Court and the call for a global effort of codification
and harmonization of International Law.

E. The Latin American experience with international tribunals,

collective security and the League of Nations
Former Guatemalan Minister of Foreign Affairs and Member of the
Permanent Court of Arbitration at the time, José Matos, delivered a course
during the 1929 sessions of The Academy, reviewing the main contributions
of Latin America to the League of Nations.
He considered that the 1826 Congress of Panama, convened by Simón
Bolívar, was a blueprint for the Paris Conference that led to the League of
Nations as its principal organs, such as the Assembly and the Council, were

22 Kohen, M. G., ‘La contribución de América Latina al desarrollo progresivo del Derecho
Internacional en materia territorial’, Anuario Español de Derecho Internacional XVII,
2001, 64.
23 Quintana, J. J., ‘The Latin American Contribution to International Adjudication: The Case
of the International Court of Justice’, Netherlands International Law Review, 39.01, 1992,
127–54.
24 Urrutia, F. J., ‘La codification du droit international en Amérique’, RCADI, 22, 1928, 81–
236.
25 UN Charter Article 2(4).
26 Lorenzen, E. G., ‘Pan-American Code of Private International Law’, Tulane Law Review,
4, 1929, 499.
20 Abello-Galvis and Arévalo-Ramírez

inspired by the Panama institutions. Indeed, the use of thematic commissions

to solve international disputes was a shared trait. Both conferences upheld
the ideal of the implementation of a collective security system and a non-
aggression pact that would bind its members.
Matos highlighted Latin America as an example of dispute settlement and
judicial effectiveness thanks to the region’s experience with the Central
American Court of Justice (Corte de Justicia Centroamericana),27 the first
permanent international court in history. The Court was the result of the
Washington Conference of 1907 that created a system of cooperation
between Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua.
This system was based on a series of conventions regarding peace and
amity, extradition, communications, governmental coordination and the
Tobar doctrine on the prohibition of granting recognition to governments
that resulted from a coup d’état.
The Court’s example substantially influenced the development of the
practice and procedure of future international tribunals. The rulings were
binding upon the members of the Washington Agreement, and the Court
had jurisdiction to solve disputes involving treaty conflicts of any nature
between and among its five member-states. It also had jurisdiction over
claims addressed by individuals of Central American countries against any
member-state for violation of treaties. This procedure envisaged an early
version of the principle of exhaustion of local remedies.28 It allowed claims
involving human rights violations, as well as the possibility for individuals to
submit cases against the state, not covered by a treaty, under mutual
consent.29
Despite its short-term existence, the Court delivered rulings that still
today hold influence in International Law. Examples worthy of mention
include its ruling in the 1917 case involving El Salvador and Nicaragua,
regarding historic bays30 and the conditions required for a gulf to be declared
as such, which was a centerpiece for the debate31 in the 1992 ruling of the
ICJ in the case El Salvador/Honduras: Nicaragua Intervening.32
Rodrigo-Octavio de Langgaard Menezes, President of the Brazilian
Delegation at the 1st Assembly of the League of Nations, delivered a course

27 Not to be confused with the Corte Centro-Americana de Justicia (Central American Court
of Justice), a Tribunal founded in 1993.
28 Hudson, M. O., ‘The Central American Court of Justice’, AJIL, 1932, 759–86.
29 Matos, J., ‘L’Amérique et la Société des Nations,’ RCADI, 28, 1929, 1–104.
30 Ruling of the Central American Court of Justice in the case between El Salvador v.
Nicaragua. Judgment of 9 March 1917; AJIL. Judicial Decisions Involving Questions of
International Law, 11, 1917, 703.
31 Abello-Galvis, R., ‘Eaux et baies historiques en droit international’, Estudios Socio-Jurídicos,
5, n.1, 2003, 33–76.
32 Land, Island and Maritime Dispute (El Salvador/Honduras: Nicaragua intervening),
I.C.J. Reports 1992, p. 351. International Court of Justice, September 11, 1992.
 Latin American doctrine on International Law 21

at The Academy during the 1930 session. The subject was the legal traditions
that were entrenched in the colonial epoch of the continent and that, based
on the indigenous experience, shaped modern legal principles applied to the
region, such as the rights and duties during occupation and the limits on
government and civil liberties.33

F. Jesús María Yepes and the study of Latin American doctrines as

developers of International Law
Jesús María Yepes was a Colombian diplomat, International Law professor,
Senator, Delegate of Colombia at the Assembly of the League of Nations
(1934–9) and Plenipotentiary of Colombia at the San Francisco Conference.
As the signatory of the United Nations Charter, he proposed the second line
of article 2 of the Charter, regarding good faith in the fulfillment of interna-
tional obligations. Yepes was one of the most influential promoters of the
Latin American ideal for an organization of states34 and the need for a perma-
nent court.35 In the sessions of 1930,36 193437 and 1947,38 he delivered a
series of lectures that widely assessed the question of the contribution of
Latin America to the development of International Law and the principal
doctrines and legal matters that are at the forefront of such a contribution.
An invitee on three occasions to deliver courses at The Academy, Yepes
was honored and internationally recognized as a leading scholar – an honor
he shares with only a few internationally acclaimed legal scholars, such as
Roberto Ago and Hans Kelsen, thus accorded by their number of invitations
to lecture.39 Following the thematic structure his lectures, which propelled
Latin American doctrines into the forefront as true initiators of the most
universal concepts of International Law, we will finally present a review of
doctrines, principles and ideas that constitute the principal contribution of
the region to the development of International Law.

33 Octavio, R., ‘Les sauvages américains devant le droit’, RCADI, 31, 1930, 177–292.
34 Yepes, J. M., ‘Philosophie du Panamericanisme et organisation de la paix’, La Bacconnière,
1945.
35 Yepes, J. M., ‘Commentaire théorique et pratique du Pacte de la Société des nations et des
statuts de l’Union panaméricaine’, Vol. 2. Paris: A. Pedone, 1934, 375.
36 Yepes, J. M., ‘La contribution de l’Amérique latine au développement du droit internatio-
nal public et privé’, RCADI 32, 1930, 691–800.
37 Yepes, J. M., ‘Les problèmes fondamentaux du droit des gens en Amérique’, RCADI, 47,
1934, 1–144.
38 Yepes, J. M., ‘Les accords régionaux et le droit international’, RCADI, 71, 1947, 227–
344.
39 Abello-Galvis, R., ‘Editorial’, ACDI – Anuario Colombiano de Derecho Internacional 1, n.
1, 2008, 7–11.
22 Abello-Galvis and Arévalo-Ramírez

III Latin American practices and doctrines that

contributed to the development of modern
International Law institutions
As mentioned above, the ideal of an organization of states was always in the
Latin American mindset regarding International Law. From the Congress of
Panama to the region’s attendance at the Second Peace Conference at the
Hague 1907, their role in the League of Nations and the San Francisco
Conference, the nations of the ‘New World’ have always been promoters of
two principles that are a prerequisite for the development of many legal
doctrines in public International Law. Namely, international solidarity
through lawfulness and the ideal of an organized international society with
permanent institutions.

A. International organizations and compulsory jurisdiction of

international courts
The work of the Brazilian delegate, Raul Fernandes, is recognized as one of
the most valuable contributions within the Advisory Committee appointed
by the League of Nations to work on the constitution of a permanent court
leading to the creation of the PCIJ (1922–46). He championed the legal
equality of states before the Court and the binding effect of its rulings as a
jurisdictional mechanism not restricted to a mere arbitration.40 Regarding the
scope of the Court’s jurisdiction, Latin American delegations also promoted
the compulsory jurisdiction of the Court for all disputes involving members
of the League, but this proposal was not well received by European nations.41
To break this deadlock, Fernandes proposed the historic article 36 (2) of
the PCIJ Statute, which would later become article 36 (2) of the ICJ Statute.
This article permits states to declare at any time that they recognize the
Court’s jurisdiction as compulsory ipso facto and without special agreement,
in relation to any other state accepting the same obligation. This procedure
has been adopted by many modern courts and has effectively motivated
inter-state judicial settlement of disputes.42

B. The practice of codifying International Law and the expansion of

codified Latin American principles
Latin America has contributed to consolidating the codification of
International Law as a desirable state practice. Multiple institutions, such as

40 Yepes, J. M., ‘La contribution de l’Amérique latine au développement du droit internatio-

nal public et privé’, RCADI, 32, 1930, 712.
41 Fernandes, R., ‘Nonagésimo Aniversário – Conferências e Trabalhos Esparsos’, Vol. 1, Rio de
Janeiro, M.R.E., 1967. 174.
42 Cançado Trindade, A. A., The Construction of a Humanized International Law: A
Collection of Individual Opinions (1991–2013), Leiden: Brill Nijhoff, 2014, 525.
 Latin American doctrine on International Law 23

the International Law Commission of the United Nations and the

International Committee of the Red Cross, share this practice. The contri-
bution of the continent in this matter not only reflects the aspiration of
codifying International Law, but also the constant need to codify regional
practices, as demonstrated by Francisco José Urrutia in his course at The
Academy. The first Six Pan-American Conferences provide a shining exam-
ple of this practice.
Furthermore, since the Panama Congress in 1826,43 the region pressed for
the codification of international practices. One of the goals of the congress
organized by Bolívar was, indeed, the compilation of all rules and legal prin-
ciples applicable to the relationship among Latin American countries, as well
as that of the region with other states.
During the 1847–8 American Congress, in Lima, it was proclaimed that
codification provided the means of unifying the rules applicable to Latin
American states. It was considered the only way by which they could appear
as a united family of peoples before the international community.44 In the
Confederation Treaty, the region codified its practices in relation to naval
warfare, including collective defense, flags and the propriety of vessels, inno-
cent passage, port blockade and other issues that are currently part of the
modern law of the sea.45
A second codification process played a major role in private International
Law: the 1888–9 Congress of Montevideo. It aimed to codify a long list of
issues, as follows: conflict of laws in civil and commercial matters, intellectual
property, choice of law and forum, legal personality and nationality. One of
its groundbreaking contributions was the proclamation of lex domicilii, a
common practice among Latin American states, as a legal principle. At the
time, European nations preferred nationality instead of domicile as criteria to
resolve conflicts of laws. The Montevideo Congress, however, helped to
promote the use of lex domicilii worldwide.

C. The Latin American origin of the law of war

Yepes and many historians of international humanitarian law affirm that Latin
American doctrine was of the utmost importance to the proclamation of
many principles of ius in bello. They also viewed the 1820 Armistice and the
Treaty for the Regularization of the War of the same year, between Simón
Bolívar and the Spanish Commander-in-Chief, Pablo Morillo, as one of the
first treaties, if not the first, to effectively codify and apply the rules of war to
an ongoing conflict. The treaty proclaimed most humanitarian rules of war
of the time and included a very specific set of rules regarding treatment and

43 Treaty of Perpetual Union, League and Confederation, Panama, 15 July, 1826.

44 Congress of Lima. ‘Protocolo de la Conferencia del 20 de Diciembre de 1847’, 1847.
45 Garcia-Amador, F. V., ‘The Latin American contribution to the development of the law of
the sea’, AJIL, 68.1, 1974, 33–50.
24 Abello-Galvis and Arévalo-Ramírez

exchange of prisoners of war, protection of civilians, rules applicable to occu-

pied territories and rules of conduct for the belligerents.46
This treaty is said to have inspired the rules included in the 1858 Treaty
of Paris ending the Crimean War. Its humanitarian formulas inspired most
humanitarian rules proclaimed during the 1907 Peace Conference at The
Hague, along with new proposals made by Latin American representatives,
such as the ban on anchored submarine contact mines. The majority of these
rules regarding armed conflict provided precious input for future confer-
ences on the laws of war, such as the First Geneva Convention in 1864,
which Latin American countries greatly participated in, the 1949 Geneva
Conventions and their protocols.

D. The early Latin American condemnation of war

Latin America as a continent was pioneering in the condemnation of war by
means of conventional instruments. The Panama Congress proclaimed that
war was contrary to international morality, while the First Pan-American
Conference, in 1889, banned the right of conquest from Latin American
practice, i.e. the prohibition of offensive wars. During the Second Peace
Conference at The Hague, Latin American delegations addressed reserva-
tions to the ‘Porter Proposition’ asserting that coercive means were not
allowed for the settling of international disputes or to recover debt. They also
stated that arbitration should be applied as the mandatory dispute settlement
mechanism, and not just a mere prerequisite to be exhausted before war
could be declared.
The efforts to ban war during the fifth Pan-American Conference47 and
the procedure introduced by the Mexican and Brazilian delegations at the
sixth Pan-American Conference both proclaimed the prohibition of war in
the following terms: ‘1) Every act of aggression is illegal, and therefore, is
prohibited, 2) The American States shall apply all the peaceful meanings
available to solve disputes that may arise between them’.48
These early formulations on the prohibition of war inspired the Paris
Treaty (Briand-Kellogg Pact) and inspire modern instruments, such as the
United Nations Charter and the Pact of Bogotá.49

46 Yepes, J. M., ‘La contribution de l’Amérique latine au développement du droit internatio-

nal public et privé’, RCADI, 32, 1930, 740
47 Treaty to avoid or prevent Conflicts between the American States, signed at Santiago, Chile,
on May 3, 1923.
48 Journal of Sessions of the VI Pan-American international Conference, La Habana. February
1928.
49 Villalta Vizcarra, A. E, ‘La Contribución de América al Derecho Internacional’, El Derecho
Internacional en las Américas: 100 años del Comité Jurídico Interamericano, OAS, 2006.
 Latin American doctrine on International Law 25

E. Other principles found in Latin American legislation regarding

International Law
Finally, Yepes and Álvarez early identified many International Law principles
in their municipal law, from Andres Bello Codes, to the first national consti-
tutions of the new American republics. Some of these principles enshrined in
municipal law include the abolition of slavery, the freedom of commerce in
times of war, the legal equality of foreigners, the freedom of the seas, the
limitation of diplomatic immunity and the reluctance to extradite individuals
accused of political charges.50

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Hughes, C., ‘Observations on the Monroe Doctrine’, American Bar Association
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nal public et privé’, RCADI, 32, 1930, 750.de l’Am lt international public et privé,
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RCADI 5, 1924, 267–366.
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Derecho Internacional en las Américas: 100 años del Comité Jurídico
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national public et privé’, RCADI 32, 1930, 691–800.
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227–344.
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 Latin American doctrine on International Law 27

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3 Latin America and the
II Hague Peace Conference
of 1907
Antônio Augusto Cançado Trindade

I Historical antecedents
Of the 26 states that participated in the I Hague Peace Conference of 1899,
only one (Mexico) was from Latin America; in turn, of the 44 participating
states at the II Hague Peace Conference of 1907, 18 were Latin American –
as acknowledged by its Acte final 1 – which represented almost half of the
participants. This substantial increase, as far as Latin American participation
was concerned, can nowadays, over one century on, be fully understood and
appreciated in its historical context.
On the American continent, inter-state concertation had in fact begun one
decade before the first Hague Peace Conference of 1899: at the series of
International Conferences of American States that commenced in 1889, and,
between the I and the II Hague Peace Conferences (of 1899 and 1907). The
second Conference of American states took place in Mexico City in 1901;
the third in Rio de Janeiro in 1906.2 In both, the participating states
displayed their preparedness in taking part in the work of systematization of
international law at a universal level.
Thus, at the II Conference of American States of Mexico City of 1901,
Latin American states took note of the three Conventions adopted at the I
Hague Peace Conference of 1899, particularly the one on Peaceful
Settlement of International Disputes, and recognized as theirs the principles
underlying it. Moreover, in order to enhance recourse to arbitration, Latin
American states adopted at the aforementioned Mexico Conference a

1 Those 18 states were: Argentina, Bolivia, Brazil, Chile, Colombia, Cuba, Dominican
Republic, Ecuador, El Salvador, Guatemala, Haiti, Mexico, Nicaragua, Panama, Paraguay,
Peru, Uruguay and Venezuela. Cf. ‘II Conférence Internationale de la Paix – Actes et
documents’, in vol. I: Séances plénières de la Conférence, La Haye: Ministère des Affaires
Étrangères/Imprimerie Nationale, 1907, pp. 689–701.
2 For an account, cf., e.g., F.V. García Amador, ‘Sistema Interamericano a través de Tratados,
Convenciones y Otros Documentos’ in vol. I: Asuntos Jurídico-Políticos, Washington, DC:
OAS General Secretariat, 1981, pp. 67 and 133–141; César Sepúlveda, El Sistema
Interamericano, 2nd ed., Mexico: Ed. Porrúa, 1974, pp. 23–8.
 The II Hague Peace Conference of 1907 29

General Treaty on Arbitration, open to signature on 30 January 1902.3 By

pledging the same ideals of the states that had participated in the I Hague
Peace Conference of 1899, Latin American states sent a clear message to
these states, to the effect that they were quite well prepared, and willing, to
participate in the forthcoming conference: the II Hague Peace Conference
of 1907.
To the same effect, Latin American states began to give expression to the
principle of the prohibition of the use of force in inter-state relations also
before the II Hague Peace Conference of 1907. It may be recalled, in this
connection, that the Drago Doctrine had been formulated five years earlier,
in response to an armed attack by three European powers (Germany, Great
Britain and Italy) in Puerto Cabello against Venezuela. The note, disclosed
by the Foreign Minister of Argentina, L.M. Drago, became well-known in
European juridical circles four years prior to the II Hague Peace
Conference.4
The Drago Doctrine was brought to the attention of the III International
Conference of American States held in Rio de Janeiro in 1906, but, as most
of the delegates were representatives of debtor states, they decided to defer
discussion of the matter and to schedule it for the following year, at the
aforementioned II Hague Peace Conference,5 where it would at last gain
international recognition.6
The principle of the prohibition of the use of force or coercion in inter-
state relations indeed found expression at the 1907 Hague Peace
Conference, with the more concentrated support of Latin American states,
which from that time on and over decades exercised considerable influence
in the evolution of international law.
As the days of the II Hague Peace Conference drew closer (15 June to 18
October 1907), the decision had been taken that this Conference would be
a ‘universal’ one, and that Latin American states were to be invited. Latin
American states had rightfully earned their place in the concert of nations.
Their presence alone at the Hague Conference in 1907 gave concrete

3 F.-J. Urrutia, ‘La codification du Droit international en Amérique’, in Recueil des Cours de
l’Académie de Droit International de La Haye 22, 1928, p. 113, and cf. pp. 116–7.
4 C. Calvo, Manuel de Droit international public et privé, 3rd rev. ed., Paris: LNDJ/A.
Rousseau Éd., 1892, p. 118, and cf. pp. 83 and 215; A. Bello, Principios de Derecho
Internacional, 3rd ed., Paris, Garnier, 1873, pp. 12–4; A. de Avila Martel, ‘La Filosofía
Jurídica de Andres Bello’, in Congreso Internacional ‘Andres Bello y el Derecho’, Santiago:
1981, Santiago: Editorial Jurídica de Chile, 1982, pp. 41–62.
5 MRE, Informes y Notas de la Delegación de Colombia en la II Conferencia de la Paz de La
Haya, 190, Rotterdam: (ed.) M. Wyt & Zonen Impr., 1908, pp. 38–9.
6 J.C. Arellano, ‘La Doctrina Drago y Su Importancia Americanista’ in Boletín de la
Academia de Ciencias Políticas y Sociales’ 36, Caracas: 1977, n. 71, pp. 157, and cf. pp.
154–5; L.M. Drago, La República Argentina y el Caso de Venezuela, Buenos Aires: Impr.
Ed. Coni Hermanos, 1903, pp. 1–326; A.N. Vivot, La Doctrina Drago, Buenos Aires:
Impr. Ed. Coni Hermanos, 1911, pp. 5–367.
30 Antônio Augusto Cançado Trindade

expression to another fundamental principle of international law: that of the

juridical equality of states.7

II Contributions to the conference

The contribution of Latin American states to the work and outcome of the
II Hague Peace Conference of 1907, and to the developments thereafter,
focused mainly on four issues: the recourse to arbitration and non-use of
force; the basic principle of the juridical equality of States; the strengthening
of international jurisdiction; and the direct access of individuals to interna-
tional justice.

A. Recourse to arbitration and non-use of force

During the consideration of the matter of peaceful recovery of contract debts
at the Peace Conference of 1907, the Porter proposal – of prior recourse to
arbitration – represented a significant advance towards international peace.
However, much of this was owed to the Drago Doctrine, which did not
concede, under any circumstance, ‘armed aggression’ for the recovery of
international contract debts.8
Latin American states supported the resort to arbitration to avoid the use
of force for the recovery of contract debts. It is significant that the project
on compulsory arbitration was supported by all American states participat-
ing in the II Hague Peace Conference of 1907. Indeed, while none of the
other delegations was outright opposed to it, each sought to accept the
outcome with greater or lesser reservation and or limitation, being finally
approved on 15 October 1907.9 As to the principle of non-use of force, the
Drago Doctrine, even with the inserted Porter amendment, represented a
sensible advance towards recourse to arbitration and abandonment of
‘measures of violence’.10
The Acte final of the II Hague Peace Conference of 1907 included a
statement of ‘principles’ that the Conference considered as being ‘unani-
mously recognized’, namely, ‘the principle of compulsory arbitration’.11 The
Acte final also added a unanimous resolution whereby the 1907 Hague
Peace Conference urged states to further the study of the ‘limitation of mili-
tary expenditures’, and expressed the voeux of the adoption of a Convention
for the establishment of an Arbitral Court of Justice, of control of military
expenditures, of observance of the principles on the laws and customs of war,

7 See F.-J. Urrutia, ‘La codification du Droit international en Amérique’, op. cit. p. 120, and
cf. pp. 116–17 and 133–4.
8 S. Pérez Triana and W.T. Stead (intr.), Doctrina Drago – Colección de Documentos, London:
Impr. Wertheimer, Lea & Co., 1908, pp. LXXIV and XLIV.
9 F.-J. Urrutia, ‘La codification du Droit international en Amérique’, op. cit., pp. 134–5.
10 Ibid., p. 137.
11 Ibid., p. 700.
 The II Hague Peace Conference of 1907 31

of peaceful settlement of inter-state disputes and of convening a III Hague

Peace Conference sometime in the future.12
Although the projected III Peace Conference never took place, the 1928
General Treaty for the Renunciation of War as a National Policy Instrument
(the so-called Briand-Kellogg Pact, in force from 24 July 1929) was
concluded two decades after the II Peace Conference, and became an instru-
ment of almost universal application. It was followed, in Latin America, by
the 1933 Saavedra Lamas Pact (the so-called Anti-War Pact, adopted at the
VII Conference of American States in Montevideo),13 amid constant reasser-
tions of the principle of prohibition of the use of force in successive regional
Conferences of American States (e.g., of Havana in 1928, of Montevideo in
1933, of Buenos Aires in 1936, of Lima in 1938 and of Mexico in 1945).14
Whatever doubts may have existed as to the prohibition of measures ‘short
of war’, the fact remains that the 1928 Briand-Kellogg Pact became the point
of no return for traditional international law and also for the no longer
warranted jus ad bellum, thus heralding the advent of the new jus contra
bellum.15 Latin American states gave a valuable contribution to this effect, as
stressed by the subsequent Saavedra Lamas Pact, and this was followed by
their overwhelming support for the adoption of Article 2(4) of the UN
Charter.

B. The principle of the juridical equality of states

The II Hague Peace Conference of 1907, with those Latin American states
present, gave concrete expression to the principle of the juridical equality of
states, grouping together the most powerful with the more fragile or vulner-
able states in the world. It was regarded as constituting an advance in
international law since the intention was to abolish the increase of arma-
ments, and to regulate the conduct of war, the ‘most hideous cause of grief
and misery’.
The principle of the juridical equality of states was consistently relied upon
by the delegations of Latin American states in the course of the debates and
work of the I Commission of the II Hague Peace Conference of 1907.16
Over the course of the 1907 Hague Peace Conference, this principle was also

12 Ibid., pp. 700–1.

13 Cf. Carlos Saavedra Lamas, Por la Paz de las Américas, Buenos Aires: M. Gleizer Ed., 1937,
pp. 91–134.
14 Cf., e.g., H. Accioly, Tratado de Direito Internacional Público, 2nd ed., vol. I, Rio de
Janeiro: [MRE], 1956, pp. 266–268; L.A. Podestá Costa and J.M. Ruda, Derecho
Internacional Público, vol. II, Buenos Aires: Tip. Ed. Argentina, 1985, pp. 221–4.
15 Cf. R. Kolb, Ius contra bellum – Le droit international relativ au maintien de la paix,
Bâle/Bruxelles: Helbing & Lichtenhahn/Bruylant, 2003, pp. 39–47.
16 In: II Conférence Internationale de La Paix – Actes et documents (La Haye – 15 juin/18
octobre 1907), vol. II: I Commission, La Haye: Ministère des Affaires Étrangères/
Imprimerie Nationale, 1907, pp. 20–1, 145, 153–55, 618, 625 and 688.
32 Antônio Augusto Cançado Trindade

invoked in the debates on the proposed Convention on Recourse to

Arbitration for the Recovery of Contract Debts. The referred principle was
thus directly related to that of the non-use of force (cf. supra).
While the II Hague Peace Conference of 1907 sought to consolidate and
expand the achievements of the earlier I Conference of 1899, some expan-
sion efforts were met with resistance. For example, although the idea of a
permanent Court of Arbitration met general acceptance, no agreement was
reached as to the structure of the proposed Court. Likewise, the proposed
International Prize Court, though regarded as an ‘undoubted progress’ in
‘eliminating a cause of conflicts among nations’, gave rise to similar reserva-
tions, bearing in mind the principle of juridical equality of states.17
During the voting, in plenary session, of the Draft Convention on the
Establishment of an International Prize Court, several delegations of Latin
American states also expressed their reservations; in particular, to the
proposed system of appointing judges, the Brazilian delegation being the
sole to vote against the project.18
The work of the II Hague Peace Conference of 1907 heralded the general
acknowledgement of the basic principle of the juridical equality of states,19 as
a manifestation of the progressive democratization of international law.20

C. The strengthening of international jurisdiction

Reference has already been made to the general support, expressed at the II
Hague Peace Conference of 1907, for the initiative of the creation of a
permanent Court of Arbitration and an International Prize Court (whereto
individuals would be granted direct access). The difficulties, which proved
insurmountable in those days, existed in relation to the organization of these
Courts, in particular, the appointment of their judges (supra).
Despite the fact that both the proposed permanent Court of Arbitration21

17 MRE, La República Argentina en la II Conferencia Internacional de la Paz – Haya 1907,

Buenos Aires: Impr. A. Pech, 1908, p. 9.
18 In: II Conférence Internationale de la Paix – Actes et documents (La Haye – 15 juin/18
octobre 1907), vol. I: Séances plénières de la Conférence, La Haye: Ministère des Affaires
Étrangères/Imprimerie Nationale, 1907, p. 168. See J. Cabral, Evolução do Direito
Internacional, Rio de Janeiro, Typ. Rodrigues & Cia., 1908, pp. 109–11, 284–5, 293 and
297; C. Bevilaqua, Direito Público Internacional – A Síntese dos Princípios e a Contribuição
do Brasil, 2nd ed., vol. II, Rio de Janeiro: Livr. Ed. Freitas Bastos, 1939, pp. 169–70.
19 F.-J. Urrutia, ‘La codification du Droit international en Amérique’, op. cit., pp. 138 and
140; L.A. Podestá Costa and J.M. Ruda, op. cit., pp. 162–5; César Sepúlveda, Derecho
Internacional, 15th ed., Mexico: Ed. Porrúa, 1986, pp. 265–70.
20 H. Valladão, Democratização e Socialização do Direito Internacional – Os Impactos Latino-
Americano e Afro-Asiático, Rio de Janeiro: Livr. J. Olympio Ed., 1961, pp. 48–98.
21 D.J. Bederman, ‘The Hague Peace Conferences of 1899 and 1907’, in International
Courts for the Twenty-First Century (ed. M.W. Janis), Dordrecht: Nijhoff, 1992, pp. 10–1;
S. Rosenne, ‘Introduction’, in PCA, The Hague Peace Conferences of 1899 and 1907 and
International Arbitration – Reports and Documents (ed. S. Rosenne), The Hague: T.M.C.
Asser Press, 2001, p. XXI.
 The II Hague Peace Conference of 1907 33

and the International Prize Court were the object of much debate at the II
Hague Peace Conference of 1907, these courts did not see the light of day,
as envisaged in the original proposals. They constituted, however, manifesta-
tions of recognition of the need to enhance international jurisdiction in the
years to come. Over the course of the debates within the I Commission of
the II Hague Peace Conference of 1907, there was support among delega-
tions of Latin American states for the idea of compulsory arbitration, to the
extent that it enhanced the principle of non-use of force.22
The Mexican delegation to the II Hague Peace Conference insisted on the
need for observance of the principle of the ‘juridical equality of states’, and
reported on the ‘vigorous opposition’ on the part of the ‘main Latin
American delegations’ to the non-observance of that principle in the compo-
sition of the projected Court.23 This led to a motion to approve only the
‘rules pertaining to the operation of the permanent Court’, and the proce-
dures before it, leaving open for subsequent deliberation the form of
constitution of the new international body.
The pacifist ideals of Latin American states proposed at the II Hague
Peace Conference of 190724 contributed to the growing acceptance of inter-
national arbitration. In this context, the delegation of the Dominican
Republic was the first to propose compulsory arbitration as a means of settle-
ment of all possible inter-state disputes.25
Although by the end of the II Hague Peace Conference of 1907 recourse
to arbitration had been made or remained optional,26 the ideal of compulsory
arbitration had thus stamped its presence at this Conference, and remained
alive in the years to come.27 It exerted influence on the chapter of peaceful
settlement of international disputes as a whole.28 This can be seen in partic-
ular in relation to judicial settlement, as the ‘clause Raul Fernandes’ (Article

22 In: II Conférence Internationale de La Paix – Actes et documents (La Haye – 15 juin/18

octobre 1907), vol. II: I Commission, La Haye: Ministère des Affaires Étrangères/
Imprimerie Nationale, 1907, pp. 13–4, 356, 915, 918–21, 924–5, 659, 791 and 915.
23 Secretaría de Relaciones Exteriores (SRE)/[Archivo Diplomático], Informe a la SRE de la
Delegación de México a la II Conferencia de Paz de La Haya, del 19 October 1907, pp. 1,
3, 9, 13–5 and 17 (internal circulation – document provided to the Author of the present
study by the SRE/Archivo Diplomático in Mexico City, on 26 March 2007).
24 J.-M. Yepes, ‘La contribution de l’Amérique Latine au développement du Droit interna-
tional public et privé’, Recueil des Cours de l’Académie de Droit International de La Haye
32, 1930, pp. 741–2 and 764–5.
25 Ibid., pp. 764–5. For an account of the memorable debates of the II Hague Peace
Conference on the matter on 05 October 1907, see J.-M. Yepes, op. cit., p. 765.
26 D. Gaurier, Histoire du Droit international, Rennes, Presses Universitaires de Rennes,
2005, p. 429.
27 C. Wilfred Jenks, The World beyond the Charter, London, G. Allen & Unwin, 1969, pp.
42–3.
28 D.J. Bederman, ‘The Hague Peace Conferences of 1899 and 1907’, op. cit., p. 11. And
cf., on the international commissions of inquiry, e.g., C. Bevilaqua, Direito Público
Internacional, op. cit., pp. 163–4.
34 Antônio Augusto Cançado Trindade

36(2)) – the optional clause of compulsory jurisdiction – of the Statute of the

Permanent Court of International Justice (PCIJ), and later, of the
International Court of Justice (ICJ), was to bear witness from 1920 and
1945 onwards. This clause came to be recognized as a Latin American
contribution to the foundation of international jurisdiction.29
The proposal for a permanent Court of Arbitral Justice formed the ‘prin-
cipal model’ for the Statute of the PCIJ in 1920. Several of its provisions
re-emerged, either unchanged or altered, and also appeared in the Statute of
the ICJ in 1945.30 The strengthening of international jurisdiction, as
proposed and supported by Latin American delegations at the II Hague
Peace Conference of 1907,31 would thus later on see the light of day.

D. Direct access of individuals to international justice

Although the projected International Prize Court, set forth in the [XII]
Convention on the Establishment of an International Prize Court, was never
created, the Convention, though not having entered into force, presented
issues of relevance for the evolution of international law. First, it foresaw the
establishment of a jurisdiction above national jurisdictions to decide on last
appeal on maritime prizes; second, it provided, in such circumstances, for the
direct access of individuals to the international jurisdiction; third, it envis-
aged a type of international compulsory jurisdiction; and, fourth, it admitted
the proposed Court’s authority to decide (compétence de la compétence).32
The initiative of the aforementioned Convention further indicated that,
already one century ago, there existed an awareness that ‘the individual is not
without standing in modern international law’.33 At the II Hague Peace
Conference of 1907, the discussions on the projected International Prize
Court (international jurisdiction on appeal on prizes) focused, for the first
time, on the recognition by an international diplomatic Conference, of the
right of petition by individuals against other states (so as to avoid direct inter-
vention by their own states). Although there was no unanimity on the
matter, most participants deemed that it would be in the states’ interests –
particularly the small or weaker ones – to avoid giving to this type of case the

29 R. Fernandes, Nonagésimo Aniversário – Conferências e Trabalhos Esparsos, vol. I, Rio de

Janeiro: MRE, 1967, pp. 174–5. And, for a recent reassessment, cf. A.A. Cançado
Trindade, ‘The Relevance of International Adjudication Revisited: Reflections on the Need
and Quest for International Compulsory Jurisdiction’, in Towards World Constitutionalism
– Issues in the Legal Ordering of the World Community (eds R. St. John Macdonald and
D.M. Johnston), Leiden: Nijhoff, 2005, pp. 515–42.
30 S. Rosenne, op. cit., p. XXI. And cf. also A. Eyffinger, ‘A Highly Critical Moment: Role
and Record of the 1907 Hague Peace Conference’, in Netherlands International Law
Review 54, 2007, n. 2, pp. 217 and 227.
31 Cf. A. Truyol y Serra, Histoire du Droit international, Paris, Economica, 1995, p. 113.
32 J. Cabral, Evolução do Direito International, op. cit., pp. 97–8.
33 J.B. Scott, ‘The Work of the Second Hague Peace Conference’ in American Journal of
International Law 2, 1908, p. 22.
 The II Hague Peace Conference of 1907 35

character of an inter-state dispute. The debates of the 1907 Hague Peace

Conference led to the prevailing view of allowing individuals to ‘personally’
address their complaints before the projected International Prize Court.34
An initiative in a similar vein occurred in 1907. On the last day of the
Central American Peace Conference, convened in Washington, DC from 14
November to 20 December 1907, five Central American states (Costa Rica,
El Salvador, Guatemala, Honduras and Nicaragua) adopted the Convention
for the Establishment of a Permanent Central American Court of Justice.35
The referred Court was endowed with jurisdiction that extended not only to
inter-state disputes but also to disputes opposing individuals to the states
parties.
In its decade of operation, ten cases were submitted to the Court: five
initiated by individuals and five inter-state cases.36 Thus, motivated by the II
Hague Peace Conference of 1907, the Central American states succeeded in
establishing an international tribunal with a broad jurisdictional basis,
pioneering in granting direct access not only to states but also to individuals
and, thus contributing to the acknowledgement of individuals as subjects of
international law.37 It became gradually recognized – as pointed out three
decades after the 1907 Hague Conference – that the ideal whereto
humankind should orient itself was that of securing the right of human
beings to directly access international jurisdiction.38

III The outcome of the conferences

As a whole, the two Hague Peace Conferences of 1899 and 1907 served
clear purposes39 – forming the opinio juris comunis – and projected their

34 Ibid., pp. 40–1.

35 Promptly ratified, by March 1908, by the five signatory states.
36 Cf. ibid., pp. 376–7; and cf. F.A. von der Heydte, ‘L’individu et les tribunaux internationaux’
in Recueil des Cours de l’Académie de Droit International de La Haye 107, 1962, p. 321.
37 C.J. Gutiérrez, La Corte de Justicia Centroamericana, San José de Costa Rica: Edit.
Juricentro, 1978, pp. 42, 106, 150–2.
38 S. Séfériadès, ‘Le problème de l’accès des particuliers à des juridictions internationales’, 51
Recueil des Cours de l’Académie de Droit International de La Haye (1935), p. 66, and cf.
p. 42. And, for a recent reassessment, cf. A.A. Cançado Trindade, El Acceso Directo del
Individuo a los Tribunales Internacionales de Derechos Humanos, Bilbao: Universidad de
Deusto, 2001, pp. 9–104; A.A. Cançado Trindade, Los Tribunales Internacionales
Contemporáneos y la Humanización del Derecho Internacional, Buenos Aires: Ed. Ad-Hoc,
2013, pp. 7–185; A.A. Cançado Trindade, Le Droit international pour la personne
humaine, Paris: Pédone, 2012, pp. 45–368.
39 S. Rosenne, ‘Third-Party Dispute Settlement at the Turn of the Century: Some Old
Problems Revisited and Some New Problems Not Foreseen at The Hague in 1899/1907,
or in the Statutes of the PCIJ and the ICJ – Introductory Statement’, in U.N.,
International Law as a Language for International Relations – Proceedings of the U.N.
Congress on Public International Law, New York: 1995, U.N./Kluwer, The Hague: 1996,
pp. 479–80; and cf. also E. Jiménez de Aréchaga, El Derecho Internacional Contemporáneo,
Madrid: Tecnos, 1980, p. 108.
36 Antônio Augusto Cançado Trindade

influence over time throughout the following decades. First, they sought to
find ways to avoid war by developing methods for the peaceful settlement of
international disputes; second, they sought ‘to humanize war through the
development of humanitarian law so as to spare all belligerents some of the
horrors of war’;40 and third, they sought to encourage the codification of
international law so as to preserve international peace and to further develop
the discipline at the universal level.
The II Hague Peace Conference of 1907 fostered the codification of
international law, which also occurred in Latin America at the regional level.
In the years that followed, codification projects flourished in the region, such
as those prepared by, e.g., Epitacio Pessôa,41 Lafayette Rodrigues Pereira,42
Alejandro Álvarez43 and Gustavo Guerrero.44 The work of codification, which
nowadays is universally undertaken at the this level, appears as a manifesta-
tion of the juridical conscience.45
A most significant outcome from the II Hague Peace Conference of 1907
was the codification it achieved of the law of war and neutrality, with the aim
of ‘humanizing’ the methods of combat, despite recurring claims of state
sovereignty. The non-use of force and recourse to arbitration and other
means of peaceful settlement of international disputes; the respect for the
juridical equality of states; and the strengthening of international jurisdiction
with the direct access of individuals to international justice. Such were the
contributions of Latin American states to the work and outcome of the II
Hague Peace Conference of 1907, and from that time to the evolution of
international law. Such contributions have now become part and parcel of
contemporary international law.

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‘Andres Bello y el Derecho’, Santiago: 1981, Santiago: Editorial Jurídica de Chile,
1982, pp. 41–62.

40 Ibid., p. 108.
41 Epitacio Pessôa, Projecto de Código de Direito Internacional Público, Rio de Janeiro:
Imprensa Nacional, 1911, pp. 5–323.
42 L.R. Pereira, Princípios de Direito Internacional, vols. I–II, Rio de Janeiro: J. Ribeiro dos
Santos Ed., 1902–3.
43 F.-J. Urrutia, ‘La codification du Droit international en Amérique’, op. cit., pp. 162–163.
44 Cf. G. Guerrero, La Codification du Droit International, Paris: Pédone, 1930, pp. 9–10,
13, 24, 27 and 150, 182 and 175; and cf. also A.A. Cançado Trindade and A. Martínez
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45 A. Mahiou, ‘Rapport général’, in La codification du Droit international (Colloque d’Aix-
en-Provence de la Société Française pour le Droit International), Paris: Pédone, 1999, pp.
30, 41–2 and 45.
 The II Hague Peace Conference of 1907 37

Bederman, D.J., ‘The Hague Peace Conferences of 1899 and 1907’, in International
Courts for the Twenty-First Century (ed. M.W. Janis), Dordrecht: Nijhoff, 1992.
Bello, A., Principios de Derecho Internacional, 3rd ed., Paris: Garnier, 1873.
Bevilaqua, C., Direito Público Internacional - A Síntese dos Princípios e a Contribuição
do Brasil, 2nd ed., vol. II, Rio de Janeiro: Livr. Ed. Freitas Bastos, 1939.
Cabral, J., Evolução do Direito Internacional, Rio de Janeiro, Typ. Rodrigues & Cia.,
1908.
Cançado Trindade, A.A., Los Tribunales Internacionales Contemporáneos y la
Humanización del Derecho Internacional, Buenos Aires: Ed. Ad-Hoc, 2013.
Cançado Trindade, A.A., Le Droit international pour la personne humaine, Paris:
Pédone, 2012.
Cançado Trindade, A.A., ‘The Relevance of International Adjudication Revisited:
Reflections on the Need and Quest for International Compulsory Jurisdiction’, in
Towards World Constitutionalism - Issues in the Legal Ordering of the World
Community (eds R. St. John Macdonald and D.M. Johnston), Leiden: Nijhoff,
2005, pp. 515–42.
Cançado Trindade, A.A. and Martínez Moreno, A., Doctrina Latinoamericana del
Derecho Internacional, vol. I, San José of Costa Rica: Inter-American Court of
Human Rights, 2003.
Cançado Trindade, A.A., El Acceso Directo del Individuo a los Tribunales
Internacionales de Derechos Humanos, Bilbao: Universidad de Deusto, 2001.
Calvo, C., Manuel de Droit international public et privé, 3rd rev. ed., Paris: LNDJ/A.
Rousseau Éd., 1892.
Drago, L.M., ‘La Cuestión de Venezuela’, in Anales de la Facultad de Derecho y
Ciencias Sociales, vol. IV, Buenos Aires: Libr. Prudent Hermanos y Moetzel, 1903,
pp. 50–59.
Drago, L.M., La República Argentina y el Caso de Venezuela, Buenos Aires: Impr. Ed.
Coni Hermanos, 1903.
Eyffinger, A., ‘A Highly Critical Moment: Role and Record of the 1907 Hague Peace
Conference’, Netherlands International Law Review 54, 2007, n. 2.
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de Janeiro: MRE, 1967.
Gaurier, D., Histoire du Droit international, Rennes: Presses Universitaires de
Rennes, 2005.
Guerrero, G., La Codification du Droit International, Paris: Pédone, 1930.
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Juricentro, 1978.
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1980.
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London: Impr. Wertheimer, Lea & Co., 1908.
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Imprensa Nacional, 1911.
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Aires: Tip. Ed. Argentina, 1985.
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J. Ribeiro dos Santos Ed., 1902–3.
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Rosenne, S., ‘Introduction’, in PCA, The Hague Peace Conferences of 1899 and 1907
and International Arbitration - Reports and Documents (ed. S. Rosenne), The
Hague: T.M.C. Asser Press, 2001.
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nales’, 51 Recueil des Cours de l’Académie de Droit International de La Haye,
1935.
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Sepúlveda, C., Derecho Internacional, 15th ed., Mexico: Ed. Porrúa, 1986.
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Cours de l’Académie de Droit International de La Haye 22, 1928.
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Latino-Americano e Afro-Asiático, Rio de Janeiro: Livr. J. Olympio Ed., 1961.
Vivot, A.N., La Doctrina Drago, Buenos Aires: Impr. Ed. Coni Hermanos, 1911.
Von der Heydte, F.A., ‘L’individu et les tribunaux internationaux’, in Recueil des
Cours de l’Académie de Droit International de La Haye 107, 1962.
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international public et privé’, in Recueil des Cours de l’Académie de Droit
International de La Haye 32, 1930.
4 Latin America and the Central
American Court of Justice
Rosa Riquelme

I Establishment: a permanent court with compulsory

jurisdiction
The settlement of controversies exclusively by pacific means is inexorably linked
to the idea of a compulsory jurisdiction. Despite the failure of The Hague Peace
Conferences (1899 and 1907) to broaden the idea of compulsory arbitration
(Martens project 1899, and projects of the United States and the Dominican
Republic, 1907),1 it provided a model for American delegates with the objective
of creating organs of compulsory jurisdiction. It was generally agreed that the
generalization of this obligation would lead to a proscription of war.
In 1902, four Central American States, Costa Rica, El Salvador, Honduras
and Nicaragua, created a somewhat regional Permanent Arbitral Court
(PCA). By means of the Treaty of Peace and Compulsory Arbitration (Pacto
de Corinto), the contracting governments established the principle of
compulsory arbitration to settle any dispute that might occur among them
via the Court of Central American Arbiters.2 Although this Court never func-
tioned, it was the inception of the Corte de Cartago, which today is a
permanent institution.3

1 The Conventions for the pacific settlement of international conflicts, adopted in The Hague
Peace Conferences, limited themselves to recommending arbitration ‘only when the circum-
stances enable it’, as well as to celebrating treaties ‘in order to extend arbitration to all cases
considered pertinent to be submitted’ (Art. 38, 1907 Convention). The Permanent
Arbitration Court, created in 1899, and practically unaltered in 1907 (Arts 41 to 50 of the
1907 Convention), is a kind of arbiters reserve formed by four national names proposed by
state members, with the possibility of proposing candidates, by nationals groups, to act as
judges at the International Court of Justice (Art. 5, Statute of the International Court of
Justice); Riquelme Cortado, R., ‘The promotion of means and methods for a pacific agree-
ment of controversies in the centennial commemoration of the First International Conference
for Peace (1899–1999)’, Anuario de Derecho Internacional, no. XV, 1999, 385–480.
2 Art. I Treaty between Central American states Providing for the Arbitration of Differences,
20 January 1902 (Martens NGR 2, 243).
3 Hudson, M. O., ‘The Central American Court of Justice’, AJIL, vol. 26, no. 4, 1932, 759–
86 (759–60); Romano, C., ‘Trial and error in International Adjudication’, in Romano, C.,
Alter, K. and Shany, Y. (ed.), The Oxford Handbook of International Adjudication, Oxford:
Oxford University Press, 2013, 127–8.
40 Rosa Riquelme

The Central American Court of Justice (CACJ) (Corte de Justicia Centro

Americana; Court of Cartago) cemented its origin in the Conference for
Central American Peace held in Washington, from 14 November to 20
December 1907, under the auspices of the presidents of the United States of
America and Mexico: Theodore Roosevelt and Porfirio Díaz. Its aim was to
avert war as a method of settling existing regional conflicts.4 Influenced by
the optimism that presided over the celebration of The Hague Peace
Conferences, the governments of the five Central American republics signed
the General Treaty of Peace and Amity (‘Washington Treaty’) at the
Washington Conference.5 Art. 1 of said treaty expressed the feeling of the
moment and considered as one of their first duties, in their mutual relations,
the maintenance of peace, and they bind themselves to always observe the
most complete harmony, and decide every difference or difficulty that may
arise amongst them, of whatsoever nature it may be, by means of the CACJ,
created by the Convention which they have concluded for that purpose in
this date,6 i.e. the Convention for the Establishment of a CACJ (‘The
Convention’),7 signed on 20 December 1907.8
The Convention defined in its preamble the pacifist mission with which it
was entrusted9 in order to guarantee the state parties their rights and to
maintain ‘peace and harmony inalterably in their relations, without being
obliged to resort in any case to the employment of force’. In keeping with
this objective, the High Contracting Parties agreed to constitute and main-
tain a permanent tribunal ‘to which they bind themselves to submit all
controversies or questions which may arise among them, of whatsoever
nature and no matter what their origin may be’ (Art. I, Convention).
The official inauguration of the court took place on 25 May 1908 in its
original headquarters in the city of Cartago (Costa Rica) and was thus known
as the ‘Court of Cartago’, a name it maintained despite the later transferral
of its headquarters to the capital, San José (see Art. V, Convention).

4 Anderson, L., ‘The Peace Conference of Central America’, American Journal of

International Law, vol. 2, no. 1, 1908, 144–51.
5 Scott J. B., ‘The Central American Peace Conference of 1907’, AJIL, vol. 2, no. 1, 1908,
121–43. Anderson, L., ‘The Peace Conference of Central America’, AJIL, vol. 2, no. 1,
1908, 144–51.
6 See in AJIL, vol. 2, no. 1/2, Supplement, 1908, 219–29; also the Additional Convention
to the General Treaty.
7 See AJIL, vol. 2, no. 1/2, Supplement, 1908, 251–5. Other Treaties signed during the
Washington Conference (1907) were: Extradition Convention; Convention on
Communications; Convention for the Establishment of an International Central American
Bureau; Convention for the Establishment of a Central American Pedagogical Institute;
and Convention Concerning Future Central American Conferences; see AJIL, vol. 2, no.
1/2, Supplement, 1908.
8 The Convention was ratified by El Salvador (20 January 1908); Nicaragua (15 February
1908); Costa Rica (28 February 1908); and Guatemala (12 March 1908).
9 Marín, E., La labor del pacifismo y la Corte de Justicia Centroamericana, San José:
Tipografía Alsina, 1908.
 Latin America and the CACJ 41

II Composition
Being an institution of genuinely Central American affiliation, the Court of
Cartago is composed of five Justices, one appointed by each republic,
selected by their legislative power (Art. VII (1), Convention) ‘from among
the jurists who possess the qualifications which the laws of each country
prescribe for the exercise of high judicial office; and who enjoy the highest
consideration, both because of their moral character and their professional
ability’ (Art. VI (1), Convention).
The Court was conceived to represent ‘the national conscience of Central
America, wherefore the Justices who compose the Tribunal shall not consider
themselves barred from the discharge of their duties because of the interest
which the Republics, to which they owe their appointment, may have in any
case or question’ (Art. XIII, Convention).
The attendance of the five Justices was considered indispensable ‘in order to
make a legal quorum in the decisions of the Court’ (Art. VI (3), Convention).
The Court had to elect from among its own members a president and vice-
president (Art. XII, Convention), however, in practice, these officers were
elected each year. The Justices of the court – including substitutes – are
appointed for a term of five years (with the possibility of re-election), which
shall begin the day they assume their duties (Art. VIII, Convention). From that
moment on, they would be entitled to the same personal immunities as those
granted to the magistrates of the Supreme Court of Justice of their member
states under domestic law. In other contracting republics, they would be
granted the privileges and immunities due to diplomatic agents (Art. IX,
Convention). The salary of the Justice of the country where the Court resides
has to be fixed by the respective government; furthermore, each state should
then contribute to defray the expenses originated by the court in the amount
established by the Convention (Art. VII (2), Convention).

III Jurisdiction and applicable law

The Court of Cartago was the first international court with jurisdiction over
sovereign states, with a permanent function and compulsory authority. It was
also the first occasion that individuals gained access to an international court.
The Court could have attained the status of a true constitutional regional
tribunal had it not been for Costa Rican reservation in recognizing its
competence to adjudge ‘the conflicts which may arise between the
Legislative, Executive and Judicial Powers, and when as a matter of fact the
judicial decisions and resolutions of the National Congress are not respected’
(Annexed Article, Convention).
The court approved its Regulations,10 and Art. 1 gives an accurate defini-
tion of its characteristics:

10 Regulation of the Central American Court of Justice, 2 December 1911; see AJIL, vol. 8,
no. 3, Supplement, 1914, 179–94.
42 Rosa Riquelme

The object of the Central American Court of Justice is to guarantee with

its authority, based upon the honour of the States, and within the limits of
the powers which have been granted to it, the rights of each of them in
their reciprocal relations, and to maintain peace and harmony among
them. It is, by nature, by its attribution and by the character of its juris-
diction, a Permanent Court of International Justice, with power to
adjudge and decide, upon petition, all cases included in its constitutive law.

Special emphasis was thus placed on the fact that the Court could never act
at the expense of a state. This is the reason why the court was unable to initi-
ate mediation proceedings in relation to the process of revolution in
Nicaragua (1910–1912).
In relation to disputes between states, the court could seize on any matter
by unilateral declaration ‘in case the respective Departments of Foreign
Affairs had not been able to reach an understanding’ (Art. I, Convention).
This requirement was very broadly interpreted by the Court, which consid-
ered an impossibility by force of circumstances as sufficient, without
requiring the exhaustion of all diplomatic means.
Art. II, Convention authorized the court to attempt to judge ‘questions
which individuals of one Central American country may raise against any of
the other contracting Governments, because of the violation of treaties or
conventions, and other cases of an international character’ with or without
the support of their government. Two alternative conditions were estab-
lished for such a claim: either to ‘the remedies which the laws of the
respective country provide against such violation shall have been exhausted’
or where the denial of justice is required to be shown.
The court would also have jurisdiction for the cases that, by common
accord, the contracting governments may submit to it, no matter whether they
arise between two or more of them or between one of said governments and
individuals (Art. III, Convention).11 It shall also have jurisdiction over cases
arising between any of the contracting governments and individuals, when by
common accord they are submitted to it (Art. III (2), Convention). The Court
can likewise take cognizance of the international questions that by special
agreement any one of the Central American governments and a foreign
government may have determined to submit to it (Art. IV, Convention).
As judge of its own competence, the court was authorized ‘to determine
its jurisdiction, interpreting the Treaties and Conventions germane to the
matter in dispute, and applying the principles of international law’ (Art.
XXII, Convention). From the moment in which any suit was filed against
one or more Governments and before a final decision pronounced ‘the court
may at the request of any one of the parties fix the situation in which the

11 The text of this paragraph was corrected by an additional protocol of the same date, signed
by the plenipotentiaries taking part in the Conference.
 Latin America and the CACJ 43

contending parties must remain’ (Art. XVIII, Convention), i.e. the court
could fix interim provisional measures of protection.
In the exercise of its judicial function, the court shall then apply ‘princi-
ples of international law’ in deciding matters of law, and with respect to
matters of fact, the court shall be ‘governed by its free judgement’ (Art. XXI,
Convention).12
The sentences of the court were final and could not be altered once the
parties in dispute were notified. The court could only be requested by any
involved party to state the interpretation given to its judgment (Art. XXIV,
Convention). Every final decision was to ‘be rendered with the concurrence
of at least three of the Justices of the court’ (Art. XXIII, Convention). In the
event of disagreement, one of the substitute magistrates had to be called at
random ‘and if still a majority of three be not thus obtained in this way, other
Justices shall be successively chosen by lot until three uniform votes shall
have been obtained’ (Art. XXIII, Convention). In any case, the definitive
sentences had to be signed by all Justices and communicated in writing to
the five governments of the contracting republics; the interested parties are
solemnly bound by said judgment (Art. XXV, Convention).

IV The role and importance of the court for the

settlement of disputes in the region
During its short-term existence, the Court of Cartago tried ten cases, the
majority of which (seven) were initiated by individuals.13 Yet, only one of the
cases initiated by an individual was admitted to the court’s proceedings: in
Bermudez v Costa Rica (1914)14 the court ruled that the plaintiff’s expulsion
from his country had not been arbitrary or illegal since it had been carried
out in accordance with the treaties and legislation in force at that time.15 The

12 The Ordinance of Procedure (6 November 2012) provided (Art. 72) that the Court should
‘consider the facts to which the controversy refers with absolute freedom of judgement,
and the question of law upon which it may depend according to the treaties and the prin-
ciples of law’; see AJIL, vol. 8, no. 3, Supplement, 1914, 194–213.
13 Dodd, T., ‘La Corte de Justicia Centroamericana, 1907–1918: Su legado, la defensa de
derechos individuales’, Revista de Historia (Costa Rica), 12–13, 1985–6, 67–82; Montiel
Argüello, A.,‘La Corte de Justicia Centroamericana y los derechos humanos’, in Liber
Amicorum, Colección de Estudios Jurídicos en Homenaje al prof. Dr. D. José Pérez Montero
2, Oviedo: Servicio de Publicaciones de la Universidad de Oviedo, 1988, 933–42.
14 Alejandro Bermúdez Nuñez v Costa Rica, Central American Court of Justice (Judgment, 7
April 1914); in Anales de la Corte de Justicia Centroamericana, vol. 4, nos 9–11, 1–119
(p. 84); see also Hudson, M. O., ‘The Central American Court of Justice’, op. cit., pp.
772–3.
15 Doctrine has been commented by Castro Ramírez, M., Cinco años en la Corte de Justicia
Centroamericana: Exposición a los poderes públicos de El Salvador y a Centro América en
general, San José (Costa Rica): Imprenta Lehmann, 1918, pp. 82–106; Gutiérrez, C. J.,
La Corte de Justicia Centroamericana (tesis), Tegucigalpa (Honduras): Biblioteca Judicial
Dr Ricardo Gallardo, 1957, pp. 35–8; Hudson, M. O., ‘The Central American Court of
Justice’, op. cit. pp. 772–3.
44 Rosa Riquelme

Court did not admit other cases submitted by individuals. Three cases were
considered to be outside the court’s jurisdiction, which were: Castillo v
Costa Rica (1908),16 Irías v Nicaragua (1909)17 and Escalante v Costa Rica
(Election of President Flores of Costa Rica) (1914).18 The cases Díaz v
Guatemala (1909)19 and Molina Larios v Honduras (1913)20 were dismissed
due to the strict application of the rule of non-exhaustion of international
remedies (Art. II, Convention). The case Cerda v Costa Rica (1911)21 was
rejected by the court on the grounds that the legality of a Justice could only
be challenged by the contracting governments.22
Furthermore, three inter-state disputes were submitted to the court. The
first being Honduras v Guatemala and El Salvador (1908),23 in which the
plaintiff alleged that the respondents had promoted and protected an
internecine revolt on the Honduran territory thus violating its sovereignty.
The Court, however, considered that Guatemala and El Salvador had

16 Onofre Silva Castillo v Costa Rica, Central American Court of Justice (Jurisdiction, 19
August 1908), Archivo Nacional de Costa Rica, Sección Histórica, Archivo de la Corte de
Justicia Centroamericana, RR.EE. caja no. 4.
17 Laureano Irías v José Santos Zelaya (Nicaragua), plaintiff 25 August 1909. See Gutiérrez,
C. J., La Corte de Justicia Centroamericana, op. cit., pp. 23–4.
18 Escalante v Costa Rica (Election of President Flores of Costa Rica), Central American Court
of Justice (Judgment, 3 July 1914); in Anales de la Corte de Justicia Centroamericana, vol.
4, nos 11–13, pp. 1–12; see also Castro Ramírez, M., Cinco años en la Corte de Justicia
Centroamericana: Exposición a los poderes públicos de El Salvador y a Centro América en
general, op. cit. p. 107–10; Hudson, M. O., ‘The Central American Court of Justice’, op.
cit., p. 773.
19 Pedro Andrés Fornos Díaz v Guatemala, Central American Court of Justice (Resolution on
Inadmissibility, 6 March 1909); in AJIL, vol. 3, no. 3, 1909, 737–47; see also Castro
Ramírez, M., Cinco años en la Corte de Justicia Centroamericana: Exposición a los poderes
públicos de El Salvador y a Centro América en general, op. cit. p. 28–41; Hudson, M. O.,
‘The Central American Court of Justice’, op. cit., pp. 769–70.
20 Felipe Molina Larios v Honduras, Central American Court of Justice (Judgment,
Admissibility of the Action, 10 December 1913); in Anales de la Corte de Justicia
Centroamericana, vol. 3, nos. 1–8, 26–67; see also Castro Ramírez, M.,Cinco años en la
Corte de Justicia Centroamericana: Exposición a los poderes públicos de El Salvador y a
Centro América en general, op. cit. p. 61; Hudson, M. O., ‘The Central American Court
of Justice’, op. cit., p. 772.
21 Salvador Cerda v Costa Rica, Central American Court of Justice (Judgment, Admissibility,
14 October 1911), in Anales de la Corte de Justicia Centroamericana (Tipografía de
Avelino Alsina, San José 1911), vol. I, no. 3, 203.
22 Although the plaintiff of Salvador Cerda aimed the restoration of his individual rights in
accordance with provisions of the Washington Treaty, the most controversial point was
whether the election of Justice Gutierrez Navas was valid or not; Hudson, M. O., ‘The
Central America Court of Justice’, op. cit., p. 768.
23 Honduras v Guatemala and El Salvador, Central American Court of Justice (Judgment 19
December 1908); see AJIL, vol. 3, no. 3, 1909, 729–36. See also ‘The First Decision of
the Central American Court of Justice’, ibid., vol. 3, no. 2, 1909, 434–36. Formal
complaints were lodged by Honduras and Nicaragua v Guatemala and El Salvador, see
Central American Court of Justice (Orders 13 July 1908), ibid., 838–40. See Brown, P. M.,
‘Costa Rica v Nicaragua’, AJIL, vol. 11, no. 1, 1917, 156–60; Hudson, M. O., ‘The
Central American Court of Justice’, op. cit., pp. 773–4.
 Latin America and the CACJ 45

observed the obligation of neutrality. In any case, the formal legality of this
decision became a matter of dispute as it was signed by only three magistrates
and not by five, as required by Art. XXIV, Convention.24
The signing of the Convention between Nicaragua and United States
regarding the Nicaraguan Canal Route and a Naval Base on the Gulf of
Fonseca (Bryan-Chamorro Treaty)25 on 5 August 1914, by which the govern-
ment of Nicaragua granted the United States the right to construct an
inter-oceanic canal through the San Juan river and to establish a naval base
in the Gulf of Fonseca was the origin of the two following cases. In its deci-
sion on Costa Rica v Nicaragua of 30 September 1916,26 the court ruled
that by concluding the Bryan-Chamorro Treaty, Nicaragua had violated
Costa Rica’s rights to prior consultation, as laid down in the 1858 Treaty of
Territorial Limits between Costa Rica and Nicaragua (Art. VIII, Cañas-Jeréz
Treaty);27 it was also according to the interpretation thereof made in the San
Juan River Case (Cleveland Award, 1888).28 Nicaragua had also violated
Costa Rica’s rights laid down in Art. IX, Washington Treaty. The Court
ordered Nicaragua to maintain the status quo ante but declined to rule on the
validity of the Bryan-Chamorro Treaty.29
The Court confirmed its stance by the decision rendered in the case El
Salvador v Nicaragua. Again, it failed to rule on the validity of the Bryan-
Chamorro Treaty. In its decision of 9 March 1917,30 the Court confirmed
Nicaragua’s obligation to maintain the status quo ante and declared the
waters of the Gulf of Fonseca a historic bay which possesses the characteris-
tics of a closed sea and belongs to the three States that surround them, i.e.
El Salvador, Honduras and Nicaragua.31 The International Court of Justice,

24 Castro Ramirez, M., Cinco años en la Corte de Justicia Centroamericana: Exposición a los
poderes públicos de El Salvador y a Centro América en general, op. cit., p. 31, Hudson, M. O.,
‘The Central American Court of Justice’, op. cit. pp. 768–9.
25 Bryan-Chamorro Treaty was signed 5 August 1914, entered into force 22 June 1916; see
in AJIL, vol. 10, no. 4, 1916, 258–60.
26 See AJIL, vol. 11, no. 1, 1917, 181–229.
27 Treaty of Territorial Limits between Costa Rica and Nicaragua, signed 15 April 1958, 48
BSFP 1049.
28 San Juan River Case (Costa Rica v Nicaragua), Award 24 March 1988, 28 RIAA, 208.
29 In the 2000s, Costa Rica and Nicaragua have sought to use the Cleveland Award of 1888
and the decision of the Central American Court of Justice of 1916 as an argument to
support its own case concerning Dispute Regarding Navigational and Related
Rights(Costa Rica v Nicaragua); however, the International Court of Justice observes that
none of the points under examination in this case was settled by these previous decisions:
Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment
13 July, I.C.J. Reports 2009, par. 49.
30 El Salvador v Nicaragua, Central American Court of Justice (Judgment, 9 March 1917),
Anales de la Corte de Justicia Centroamericana, vol. 4, nos. 16–18, 96–170; translation in
AJIL, vol. 11, no. 3, 1917, 674–730.
31 The judgment of the Court of Cartago (1917) is in part in the form of answers by the
judges to questions (twenty-four in all) formulated by the Court. The answers relevant for
the present purpose are about the international legal status of the Gulf of Fonseca and on
the consequences of that status for the waters of the Gulf; see ninth question, ibid., p. 717.
46 Rosa Riquelme

in the Land Island and Maritime Frontier Dispute Case, conferred the inter-
national legal status of the Gulf of Fonseca (El Salvador/Honduras:
Nicaragua Intervening, 1992).32
Nicaragua did not accept these decisions rendered by the Court of
Cartago and, in March 1917, it communicated its intention to denounce the
Convention. Nevertheless, since the Convention was anyway due to expire
ten years after the last ratification, pursuant to Art. XXVII of the
Convention, the Court continued its functioning until April 1918, after
which it was then dissolved. All subsequent attempts to revive the Court
were unsuccessful. The Central American Arbitration Tribunal created by the
Washington Conference of 192333 was completely different from the former
Court of Cartago, as it did not have a body of permanent judges, but instead
a list of arbiters such as the Permanent Arbitration Tribunal, created under
the auspices of The Hague Peace Conference.

V Conclusion
The CACJ was the first international court of its kind with obligatory juris-
diction for all controversies that could arise between states within the region.
It was also the first international court to allow individuals from a Central
American state to bring charges against another state without the support of
their government. This was a groundbreaking measure that has taken a
century to flourish in relation to other international human rights tribunals.
However, the Convention did not allow individuals to take action against
their own government, nor was the court able to function as a true federal
tribunal due to the reservations of Costa Rica.34 Besides, the court’s compro-
missory jurisdiction, provided for in Arts. III and IV of the Convention, had
never been activated.
Despite the fact that the Court of Cartago had to represent ‘the national
conscience of Central America’ (Art. XIII, Convention), the method of
electing its Justices (by the legislative power of each country), and the way
they received their salaries (by the respective government) were elements
that strongly limited its independence. The privileges and immunities
enjoyed by the Justices during their terms were insufficiently clear.
Furthermore, the court lacked mechanisms to enforce the execution of its

32 Land Island and Maritime Frontier Dispute Case (El Salvador/Honduras: Nicaragua
Intervening), Judgment 11 September, I.C.J. Reports 1992, p. 350 (269). Riquelme
Cortado, R., La intervención de terceros Estados en el proceso internacional: Un caso test, la
intervención de Nicaragua en la controversia marítima Honduras/El Salvador, Madrid:
Tecnos, 1993.
33 Convention for the Establishment of an International Central American Tribunal, signed
17 February 1923; see in AJIL, vol. 17, no. 2, Supplement, 1923, 83–106.
34 See in these regard the critical opinion of Hudson, M. O., ‘The Central American Court
of Justice’, op. cit., p. 785.
 Latin America and the CACJ 47

final judgments, a limitation that still today affects the majority of interna-
tional courts and tribunals.
It should be emphasized, however, that despite its limitations and imper-
fections, the Court of Cartago was a truly shining example of an endeavour
to resolve all regional conflicts solely by peaceful means. In fact, the proceed-
ings of the court in inter-state disputes might have been decisive in avoiding
the use of force. The responsibility of the United States in the termination of
the Court’s functions due to the conclusion of the Bryan-Chamorro Treaty
with Nicaragua should also be duly noted, as well as the fact that although
this treaty was valid until 1972, no construction had been undertaken.
In short, it can be said that the creation of the Court of Cartago shaped a
decisive step in the development of methods of peaceful settlement of
disputes by judicial means, thus setting the precedent for the creation of the
Permanent Court of International Justice fourteen years later. At the
regional level, the Court of Cartago was the inception for the CACJ, which
today is the main permanent legal body of the Central American Integration
System (Sistema de la Integración Centro Americana, SICA).35

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5 Latin America and the
Permanent Court of
International Justice
Miriam Cohen

The history of international dispute settlement, and in particular, that of

the Permanent Court of International Justice (PCIJ) cannot be recited
without reference to the contribution of Latin American states. In a simi-
lar vein, since the inception of the PCIJ, international peaceful dispute
settlement in Latin America has also significantly evolved. From the incep-
tion of the idea of creating a permanent court to settle international
disputes, Latin American states contributed significantly to the compulsory
jurisdiction of that Court. Their prominent role continued long after the
creation of the PCIJ, with its successor, the International Court of Justice
(ICJ).
This chapter places the important role of Latin American states in the
solidification of the peaceful settlement of international disputes, from the
prism of their relevant role in the creation of the PCIJ and their support of
that institution. It first overviews the brief history of the PCIJ and
addresses the contribution of Latin American states to the inception and
foundational aspects of that Court. In this sense, it focuses on the signifi-
cant role of Latin American states to the development of the idea of
compulsory jurisdiction, through a review of relevant statements of dele-
gates of the region in the negotiation of the PCIJ statute. This chapter
ultimately argues that Latin American states performed a cardinal role in
the creation of the Court, and more broadly, in the progressive develop-
ment of international law.

I Where it all began: the short history of the Permanent

Court of International Justice in the broader context of
international dispute settlement
While recognizing that the history of the peaceful settlement of interna-
tional disputes dates back to the classical era, the judicial settlement of
international disputes is intrinsically linked with the creation of the PCIJ.
The first modern international tribunal was the Central American Court of
Justice, which was in operation for a short period of time, from 1907 to
1917. However, the PCIJ was effectively the first World Court, since the
 The Permanent Court of International Justice 51

former was a regional Court.1

The history of the PCIJ cannot be properly examined without mention-
ing the participation of Latin American states, in its formative years, and with
regard to the conception of compulsory jurisdiction, which remains relevant
to this day. Similarly, the (legal) history of Latin America cannot be explained
without mentioning the events that led to the creation of the PCIJ. A
descriptive overview will assist in establishing the rationale for the creation of
the PCIJ.
Article 14 of the Covenant of the League of Nations2 referred to the estab-
lishment of a Court – the PCIJ – which was competent to adjudicate disputes
of an international nature and to provide advisory opinions on questions
referred to it by the Council or Assembly of the League of Nations.
In order to give life to this provision,3 the Council of the League of
Nations appointed in 1920 an Advisory Committee of Jurists to draft the
statute of what was to become the PCIJ.4 Soon after, a report emanated from
the Advisory Committee of Jurists containing the draft scheme of the statute,
which the Committee would submit to the Council in August of the same
year. After further examination and amendments, the Council submitted the
draft for consideration by the First Assembly of the League of Nations in its
meeting in Geneva in November of the same year.
This draft statute was then submitted to a Third Committee where it
underwent exhaustive study by a subcommittee. The Assembly unanimously
adopted a revised version of what would become the PCIJ statute in
December 1920. This statute required ratification by the states members of
the Assembly. Within a few months, in September 1921, the majority of the
League member states signed and ratified the statute of the PCIJ, thus
rendering it into force.

1 On the Central American Court of Justice, see generally: Central American Court of
Justice, Washington, DC: Carnegie Endowment for International Peace Library, 1928. See
also, Maldonado Jordison, S., ‘The Central American Court of Justice: Yesterday, Today
and Tomorrow?’, Connecticut Journal of International Law 25, 2009, 183–242, and
Eyma, J., La Cour de justice Centre Americaine, Paris: E. Sagot & cie, 1928, 171–6.
2 According to this provision: ‘The Council shall formulate and submit to the Members of
the League for adoption plans for the establishment of a Permanent Court of International
Justice. The Court shall be competent to hear and determine any dispute of an interna-
tional character which the parties thereto submit to it. The Court may also give an advisory
opinion upon any dispute or question referred to it by the Council or by the Assembly’,
League of Nations, Covenant of the League of Nations, 28 April 1919, available at:
www.refworld.org/docid/3dd8b9854.html (last accessed 20 September 2015).
3 For the history of the creation of the PCIJ, see the PCIJ official website, online, available
at: www.icj-cij.org/court/index.php?p1=1&p2=1 (accessed 11 July 2016). See also,
Spiermann, O., ‘International Legal Argument in the Permanent Court of International
Justice: The Rise of the International Judiciary’, in Cambridge Studies in International and
Comparative Law, Cambridge: Cambridge University Press, 2005.
4 See, generally, Comité Consultatif de Juristes, Procès-verbaux des Séances du Comité (16
juin – 24 juillet 1920), La Haye: Van Langehuysen Frères, 1920.
52 Miriam Cohen

The first election of Judges of the Court was held on 14 September 1921.
The first panel of judges comprised two Latin American judges: Ruy Barbosa
from Brazil, who passed away before having heard a case, was soon replaced
by Epitácio da Silva Pessoa, and Antonio Sánchez de Bustamante y Sirven
from Cuba. In the Peace Palace in The Hague, the preliminary session to
establish the Court’s Rules opened on 30 January 1922, and on 15 February
1922 the inaugural sitting was conducted.
An important question arose concerning the composition of the PCIJ
and, in this respect, Latin American states provided a lasting contribution.
The Brazilian project for the creation of a Court of Arbitral Justice presented
in 1907 envisaged one judge per member state and advocated for a judge
from the nationality of each party to a dispute.5 The idea that every party to
a dispute have a judge of its nationality in the Court remains intact to this
day.6 When deliberating on a draft statute for the PCIJ, the Advisory
Committee took into account the 1907 Brazilian project and discussed at
length the question of the nationality of judges.7 Article 31 of the PCIJ
statute dealt with the question at hand.8 In 1929, a prior revision of the
statute stated that the elected judges ‘should represent the main forms of
civilization and the principal legal systems of the world’. The revised version
of the statute came into force in 1936. Thus, this new formula provided a
foundation for the operation of the PCIJ and its successor.
A total of 45 states initially signed the PCIJ statute. This event was actu-
ally a fair representation as at that time only 52 states were members of the
League of Nations, and particularly because the PCIJ was not part of the
League of Nations.9
The history of the PCIJ was short-lived, with an even shorter heyday.
With the onset of World War II, the Court came to an end, having
conducted its last wartime session in early 1940, prior to the German occu-
pation of The Netherlands. In spite of its short tenure, its contribution to
international law cannot be underestimated.
Within the 24-year history of the Court, it developed a powerful jurispru-
dence10 and planted the seed for the notion of peaceful settlement of

5 Cf. Brazil’s proposal, which counted on one judge and one substitute judge appointed by
each member state: Actes et documents de la deuxième conference, La Haye, Vol. II 1908,
620, 1047.
6 The successor of the PCIJ – the ICJ – still adopts to this day the rule that every party to a
dispute has the right to have a judge of its nationality sitting at the Court.
7 Procès-Verbaux of the Proceedings of the Committee, 121, 168, 197, 222, 528, 576 and 614.
8 For a detailed account of the question of the nationality of Judges before the PCIJ, see
Hill, N., ‘National Judges at the Permanent Court of International Justice’, The American
Journal of International Law, vol. 25 no. 4, 1931, 670–83.
9 On this point, cf. Hudson, M. O., International Tribunals – Past and Future, Washington:
Carnegie Endowment for International Peace/Brookings Institution, 1944, 76–8.
10 Concerning the significance of the PCIJ, cf. Spiermann, O., ‘International Legal Argument
in the Permanent Court of International Justice: The Rise of the International Judiciary’,
op. cit. n. 4.
 The Permanent Court of International Justice 53

international disputes by resort to international adjudication. From 1922 to

1940, the legacy of the Court accumulated a total of 27 advisory opinions
and 29 contentious cases, mostly concerning European countries.11

II Latin American states and the creation of the PCIJ

After providing a descriptive overview of how the PCIJ came into being, this
chapter will now focus on influence of Latin American states in the creation
and the subsequent functioning of the PCIJ.
According to Russel and Tokatlian, between the end of the nineteenth
century and the 1930s, Latin America was concerned with safeguarding its
sovereignty and the legal equality of states in light of the threat of interven-
tion by greater powers and armed conflict by the United States, against a
backdrop where Latin America responded by creating doctrine and multilat-
eral diplomacy.12 Amidst this setting, the discussions leading to the adoption
of the PCIJ statute and its entering into force relied on strong support by
Latin American countries.13 This is not surprising in view of Latin American
countries pioneering the establishment of the first regional Court of Justice:
the Central American Court of Justice.

A. The role of Latin American states in the conception of the

compulsory jurisdiction of the PCIJ 14
It can be said that the Latin American countries were strong supporters of
the idea of compulsory jurisdiction for the PCIJ. This is also applicable to its
successor, the ICJ.15
The Advisory Committee of Jurists discussed the notion of compulsory
jurisdiction at length while deliberating and establishing the draft statute of

11 See the PCIJ official website.

12 Russel R., and Tokatlian, J. G., ‘Grand Strategy’, in Dominguez, J. and Covarrubias, A.
(eds), Routledge Handbook of Latin America in the World, London: Routledge, 2014, 58–
73, at 63.
13 Concerning the Latin American contribution to international law more generally, see
Caminos, H., ‘The Latin American Contribution to International Law’, Proceedings of the
105th Annual Meeting (American Society of International Law) 80, 1986, 157–72; Yepes,
J. M., ‘La contribution de l’Amérique Latine au développement du droit international
public et privé’, Recueil des Cours de l’Académie de Droit International de la Haye 32, The
Hague: Brill Nijhoff, 1930; Urrutia, F. J., ‘La codification du droit international en
Amérique’, Recueil des Cours de l’Académie de Droit International de la Haye 22, The
Hague: Brill Nijhoff, 1928.
14 I am grateful to the writings of Judge Cançado Trindade concerning the history of compul-
sory jurisdiction before the PCIJ, which contributed to the conception of the present
chapter. See e.g.: Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2011, p. 70, Dissenting Opinion of Judge A.A. Cançado
Trindade, paras. 27–36.
15 See in this regard, ibid.
54 Miriam Cohen

the PCIJ.16 Had it been fully adopted, the compulsory jurisdiction of the
PCIJ would have meant that the Court would have jurisdiction to hear
certain disputes without the states’ prior agreement.17 The Committee had
reached a consensus on a draft provision to this effect; the compulsory juris-
diction would enable the Court to hear all disputes of a ‘legal’ nature, while
other sorts of disputes would have required states’ prior consent.18
As Judge Cançado Trindade noted: ‘It was seemingly intended that the
introduction of such system of compulsory jurisdiction in disputes of a legal
nature, would also extend to other cases in so far as they were covered by
general or specific conventions between the (contending) parties.’19
The question of the compulsory jurisdiction of the Court was of the
utmost importance to the Advisory Committee itself, which commented that
‘the majority of [the Committee] recognized that the States forming the
League of Nations, in constituting the Court, must give it a competence in
cases of a legal nature, without any convention other than the constituent
statute of the Court.’20
Notwithstanding, the Council of the League of Nations did not pursue
the proposal of the Advisory Committee regarding compulsory jurisdiction;
the question was thus referred to the Assembly for further discussion.21
Latin American states also played a key role within the Assembly in the
conception of a compulsory jurisdiction of the Court. Some of the same
members of the Advisory Committee of Jurists were also members of the
Assembly as delegates of their countries.
The road for the adoption of the compulsory clause was much bumpier in
the Assembly than it had been in the Advisory Committee of Jurists.22 This
is maybe due to the fact that the Assembly was under the impression that the
draft provision relating to compulsory jurisdiction conflicted with the
Covenant of the League. This question was then assigned for discussion by
a Sub-Committee. While acknowledging the impasse, the Sub-Committee
decided not to propose changes to the Article.

16 Comité Consultatif de Juristes, op. cit., n. 5, 218.

17 For a discussion of the compulsory jurisdiction, cf. Gross, L., ‘Compulsory Jurisdiction
under the Optional Clause: History and Practice’, in Damrosch, L. F. (ed.), The
International Court of Justice at a Crossroads, New York ASIL: Transnational Publishers,
1987.
18 For a detailed and insightful account of the travaux préparatoires concerning the compul-
sory jurisdiction of the PCIJ, see Cançado Trindade, A. A., The Construction of a
Humanized International Law: A Collection of Individual Opinions (1991–2013), Vol. 2,
Leiden: Nijhoff, 2015, pp. 1174–83.
19 Ibid., 1175.
20 Comité Consultatif de Juristes, op. cit. n. 5, 727–8.
21 Cf. on the matter of compulsory jurisdiction before the Advisory Committee of Jurists:
Scott, J. B., The Project of a Permanent Court of International Justice and Resolutions of the
Advisory Committee of Jurists – Report and Commentary, Washington, 1920, 98.
22 Documents concerning the Action Taken by the Council of the League of Nations under
Article 14 of the Covenant, Geneva, 1921, 1 et seq.
 The Permanent Court of International Justice 55

To be further explored in the next section, the contribution of the

Brazilian delegate, Raul Fernandes, was critical to reaching a diplomatic
compromise.23 His proposal, which constituted a modification of the original
draft provision, stated that states could decide whether or not to sign such a
clause.24 The revised version of his proposal determined that states wishing to
submit to the compulsory jurisdiction of the Court could do so by means of
a declaration. This proposal eliminated the deadlock and the Assembly
approved it along with the rest of the draft statute.25

B. Statements of delegates of Latin American states in support of the

compulsory jurisdiction of the Court
While many delegates from states outside Latin America also voiced their
support for the compulsory jurisdiction of the Court,26 it is relevant, at this
stage, to mention some of the points made by Latin American delegates
during the debates concerning the compulsory jurisdiction of the Court.
These statements illustrate the crucial role of Latin American states in
supporting the idea of compulsory jurisdiction.
The Argentinean delegate, Mr Pueyrredon, stated his view that if the
Court’s ‘jurisdiction was not obligatory, the Court would … be merely an
arbitration tribunal’.27 The Brazilian delegate also insisted on the maintenance
of the original draft proposed by the Committee of Jurists.28 Similarly, another
Latin American delegate defended the compromissory clause: ‘the parties
should be obliged to bring the case before the Court if they had not agreed
to submit it to arbitration or to enquiry by the Council’.29

23 B. C. J. Loder explains this compromise in the following terms: ‘Although on the one hand
it was perceived that the opposition of the Council to the proposal of the Committee of
Jurists should be respected, on the other hand it would not do to overlook the wishes on
the great majority, for they saw in compulsory jurisdiction the only guarantee of enforcing
justice. The condition for a satisfactory solution was to find a compromise between these
two views. The honour of having found this is due to the Delegate from Brazil, Senhor
Fernandes, one of the ten jurists, a man as sagacious as he is energetic. To cast this solu-
tion into a form acceptable to everybody was the task of the Sub-Commission of the III
Committee.’ Loder, B. C. J., ‘The Permanent Court of International Justice and
Compulsory Jurisdiction’, British Yearbook of International Law 2, 1921–2.
24 Cf. ibid., 107 and Annex 11.
25 Ibid., 110.
26 Although the focus of the present chapter is on Latin American states, it should also be
mentioned that delegates of other states, in addition to the Latin American delegates, also
spoke in strong terms in favour of the compulsory. See for example the statements of the
delegates of Greece (Mr Politis), of Switzerland (Mr Huber) and of Belgium (Mr
Lafontaine), op. cit.
27 Cf. League of Nations, Records of the First Assembly – Meetings of the Third Committee
(PCIJ), Geneva, 1920, 285.
28 Ibid.
29 Ibid., 286 (delegate of Panama). See also the views of the delegate of Portugal in the same
sense.
56 Miriam Cohen

Following the same line of reasoning, the Bolivian delegate, Mr Tamayo,

supported the ‘just, humane and truthful [nature] of compulsory arbitra-
tion’; not acquiring compromissory jurisdiction would be tantamount to
‘promising us justice for tomorrow … not giving it to us today’.30 In relation
to the revised draft, the Cuban delegate expressed the view that:

Although the principle of compulsory jurisdiction is not included in the

resolution of the Third Committee, we will vote for that resolution. We
understand the saying of the Latin philosopher: natura non fecit saltus.
Perfection cannot be attained in a moment from that which does not as
yet exist. The laws of evolution govern all things. We must begin by
building a little chapel, and in the course of time the League of Nations
will be able to build a cathedral.31

Perhaps a statement that best captures and condenses the contribution of Latin
American states to the idea of compulsory jurisdiction was from the Peruvian
delegate, Mr Cornejo: ‘Latin America, by a very great majority, perhaps unan-
imously, desires compulsory jurisdiction and the reign of peace.’32
It became very clear, however, in the discussions of the delegates, that
although there was strong support for the idea of compulsory jurisdiction,
the statute of the PCIJ would not include a compromissory clause.33
However, in order for the Court to come into existence, a compromise was
necessary.
As previously stated, it was the Brazilian delegate, Mr Fernandes, who
proposed a compromise solution, currently known as the optional clause.
This made the draft text (of what was to become Article 36 of the PCIJ
statute) agreeable, permitting negotiations to proceed and for the statute to
be adopted. His proposal was basically a compromise to ensure that the draft
statute would be adopted. Indeed, he stood by the original draft and strongly
criticized the modifications made in the recommendations of the Advisory
Committee of Jurists by the League’s Council. Thus, he stated that: ‘For

30 Ibid., 248.
31 Ibid., 246–7.
32 Ibid., 244.
33 See in this regard the statement of the delegate of Portugal:
When we realize the necessity of remaining faithful to the declarations of the preamble
to the Covenant and of declaring ourselves on the question of compulsory jurisdiction,
we shall be forced to accept compulsion. The tribunal we are going to found will then
be provided with compulsory jurisdiction, which will be admitted by all the Members
of the League of Nations. Such is my wish. I accept the institution of a Permanent
Court of International Justice because I have confidence in the future. If we are not to
reach the end of which I have spoken, we are deceiving ourselves. The tribunal will
disappear, and with it the League of Nations, if, to settle their disputes, the Members
of the League are still at the liberty to resort to war.
(Ibid., 246)
 The Permanent Court of International Justice 57

legal questions the Court should have jurisdiction because the decisions of
the Court are the application of the law, and make law.’34
To sum up, it is worth quoting the words of the Norwegian delegate, Mr
Hagerup, who recognised the contribution of Latin American states to the
conception of the idea of compulsory jurisdiction:

There are already in existence a large number of conventions which

provide for compulsory jurisdiction. I am happy to pay tribute here to
the important part played by the States of South America in this move-
ment. They deserve a large share of the credit for the extension on the
idea. … I wish to emphasize here how highly desirable it would be for
all States, which are bound by treaties providing for compulsory juris-
diction in a general way, to modify them so that this jurisdiction shall
henceforth devolve upon the Court which we are about to set up. Such
an attitude will greatly help to extend the Court’s jurisdiction. I have
already in my first speech pointed out the importance of the motion of
the Brazilian Delegation, … according to which States which desire to
extend the scope of compulsory jurisdiction are permitted to do so by
means of the simple declaration. … I have been, from the outset, a
champion of the principle of compulsory jurisdiction. I can accept
wholeheartedly the proposal now presented.35

Thus, the idea of compulsory jurisdiction, as originally conceived (prompt

compulsory jurisdiction for all states) for what was to become the first World
Court, died before it could even mature, but not without support from vari-
ous delegates, and most importantly, those from Latin American states. The
compulsory jurisdiction of the Court, through the compromissory clause as
it was originally intended by the draft of the Advisory Committee, yielded to
the idea of the ‘optional clause’ proposed by the Brazilian delegate. Indeed,
the optional clause was the next best option at the time and also an impor-
tant victory in order to attract supporters for the PCIJ statute. Mr Fernandez
himself explained that the Advisory Committee of Jurists had the difficult
task of balancing the challenge of creating the PCIJ while also making sure
that the principle of juridical equality of states would not be compromised.36
The compromise of the optional clause was ultimately successful in guaran-
teeing the acceptance of the PCIJ statute and, ultimately, the creation of the
Court. It ‘was intended to pave the way for further development towards
compulsory jurisdiction, and served its purpose in the following two decades.’37

34 Ibid., 285.
35 Ibid., 250.
36 Cf. Fernandes, R., Nonagésimo Aniversario – Conferencias e Trabalhos Esparsos, Rio de
Janeiro: M.R.E., 1967.
37 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J.
Reports 2011, op. cit. n. 16, para. 38.
58 Miriam Cohen

It stems clearly from the debates and statements made during the negoti-
ation of the statute with regards to the compulsory jurisdiction that there
were divergent opinions between states that wished to have a prompt juris-
diction of the PCIJ and those ‘more powerful States’ who wished to have a
gradual trust of the tribunal.38
A review of these statements adequately encapsulate and demonstrate the
degree according to which Latin American delegates, representing their
states, contributed to the creation of the PCIJ and to important debates
concerning its functioning, especially regarding the compulsory jurisdic-
tion.39

III Concluding remarks: Latin American contribution to

the PCIJ as a lasting contribution to international law
The focus of the present chapter was on the contribution of Latin American
states to the creation of the PCIJ, as the first international judicial settle-
ment Court (the first World Court), and more specifically, on the
conception of the idea of compulsory jurisdiction. In addition to the
support for the idea of an international court to hear legal disputes between
states, the historic contribution of Latin America consisted of ensuring that
the statute of the Court would be accepted by states through the optional
clause compromise. The contribution of Latin American states to the PCIJ,
and more generally to international law, cannot be addressed only in a single
chapter, as their role goes beyond that of contributing to the creation of the
PCIJ, and the latter’s conception of compulsory jurisdiction. Latin America
as a region has played an important role in the progressive development of
international law, and its contribution to the PCIJ is only but one facet of
this broader contribution.40
The support of Latin American states meant that the Court became a real-
ity, and thus the peaceful judicial settlement of international disputes saw the
light of day. The significance of the Court itself to the development of inter-
national law is clear: it paved the way to the permanent World Court (ICJ),
it contributed to avoiding escalation of conflicts by providing a judicial
forum for the settlement of disputes, and it left a lasting legacy in terms of
international legal doctrine and jurisprudence. Latin American states played
a role in this accomplishment and thus, it can be said, that the history of the
PCIJ, and of international dispute settlement itself, cannot be told without
honouring the region and its longstanding commitment to international
peace and justice.

38 Cf. Cançado Trindade, A. A., op. cit. n. 13.

39 Cf. Yepes, op. cit. n. 13.
40 Concerning the broader question of Latin America’s contribution to international law, see
Yepes, op. cit. n. 13.
 The Permanent Court of International Justice 59

Bibliography
Books
Cançado Trindade, A. A., The Construction of a Humanized International Law: A
Collection of Individual Opinions (1991–2013), Vol. 2, Leiden: Nijhoff, 2015.
Central American Court of Justice, Washington, DC: Carnegie Endowment for
International Peace Library, 1928.
Eyma, J., La Cour de justice Centre Americaine, Paris: E. Sagot & cie, 1928, 171–6.
Fernandes, R., Nonagésimo Aniversario – Conferencias e Trabalhos Esparsos, Rio de
Janeiro: M.R.E., 1967.
Hudson, M. O., International Tribunals – Past and Future, Washington, DC:
Carnegie Endowment for International Peace/Brookings Institution, 1944, 76–8.
Scott, J. B., The Project of a Permanent Court of International Justice and Resolutions
of the Advisory Committee of Jurists – Report and Commentary, Washington, DC:
1920.
Spiermann, O., ‘International Legal Argument in the Permanent Court of
International Justice: The Risae of the International Judiciary’, in Cambridge
Studies in International and Comparative Law, Cambridge: Cambridge University
Press, 2005.

Journal articles
Caminos, H., ‘The Latin American Contribution to International Law’, Proceedings
of the 105th Annual Meeting (American Society of International Law) 80, 1986,
157–72.
Hill, N., ‘National Judges at the Permanent Court of International Justice’, 25
American Journal of International Law 670, 1931.
Loder, B. J., ‘The Permanent Court of International Justice and Compulsory
Jurisdiction’, British Yearbook of International Law 2, 1921–2.
Maldonado Jordison, S., ‘The Central American Court of Justice: Yesterday, Today
and Tomorrow?’, Connecticut Journal of International Law 25, 2009, 183–242.
Urrutia, F. J., ‘La codification du droit international en Amérique’, Recueil des Cours
de l’Académie de Droit International de la Haye 22, The Hague: Brill Nijhoff, 1928.
Yepes, J. M., ‘La contribution de l’Amérique Latine au développement du droit inter-
national public et privé’, Recueil des Cours de l’Académie de Droit International de
la Haye 32, The Hague: Brill Nijhoff, 1930.

Official documents
Actes et documents de la deuxième conference, La Haye, Vol. II 1908, 620, 1047.
Comité Consultatif de Juristes, Procès-verbaux des Séances du Comité (16 juin – 24
juillet 1920), La Haye, Van Langehuysen Frères, 1920.
Documents concerning the Action Taken by the Council of the League of Nations under
Article 14 of the Covenant, Geneva, 1921.
League of Nations, Covenant of the League of Nations, 28 April 1919. Available at:
www.refworld.org/docid/3dd8b9854.html (last accessed 20 September 2015).
League of Nations, Records of the First Assembly – Meetings of the Third Committee
(PCIJ), Geneva, 1920.
60 Miriam Cohen

Book chapters
Gross, L., ‘Compulsory Jurisdiction under the Optional Clause: History and
Practice’, in L. F. Damrosch (ed.), The International Court of Justice at a
Crossroads, New York ASIL: Transnational Publishers, 1987, 19–57.
Russel, R. and Tokatlian, J. G., ‘Grand Strategy’, in Dominguez, J. and Covarrubias,
A. (eds), Routledge Handbook of Latin America in the World, London: Routledge,
2014, 58–73.

Jurisprudence
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment,
I.C.J. Reports 2011, p. 70, Dissenting Opinion of Judge A. A. Cançado Trindade.
6 Latin America and the
International Court of Justice
The Pact of Bogotá
María Teresa Infante Caffi

I The Pact of Bogotá as a source for the compulsory

jurisdiction of the ICJ
The American Treaty on Pacific Settlement or Pact of Bogotá, adopted at the
Ninth International Conference of American States in 1948, relates to the
structure of the Inter-American System.1 The Pact inherited proposals
advanced by the Inter-American Juridical Committee (IAJC) from 1945,
when a draft Inter-American System of Peace emerged.2 Draft studies
conducted during the years 1938–45 and the work of the IAJC to coordi-
nate and systematize the Inter-American Peace Agreements had
demonstrated preferences for a combination of procedures, including a
regional court. On the whole, the concept of an Inter-American System of
Peace was enshrined in the Chapultepec Conference.3
Later, in Bogotá, judicial and arbitral procedures became central to the
discussion and this resulted in an innovative scheme of compulsory

1 A historical introduction to the System in The Inter-American System. Treaties, Conventions

& Other Documents. Vol. I, Legal – Political Affairs, Part I. A compilation annotated by
García Amador, F. V., Historical Introduction, London; New York: Oceana Publications,
1983, pp. 1–66.
2 ‘Anteproyecto de “Sistema Interamericano de Paz” e Informe Anexo’. Comité Jurídico
Interamericano, 1945, Unión Panamericana, Washington, D.C., 6 October 1945. Also,
Lleras, A., ‘El Pacto de Bogotá y la OEA. Informe sobre la IX Conferencia Internacional
Americana’. Antología. V. El Diplomático, pp.128–247, in Morales Benítez, O., Bogotá:
Villegas Editores, 2006. Available at: http://jorgeorlandomelo.com/bajar/pactodebo-
gota.pdf (accessed 1 June 2015). Also, Valencia-Ospina, E., ‘The Role of the International
Court of Justice in the Pact of Bogotá’, in Liber Amicorum ‘In Memoriam’ of Judge José
María Ruda, The Hague: Kluwer, 2000, pp. 296–9.
3 Conferencia Interamericana sobre Problemas de la Guerra y de la Paz: Informe sobre los
Resultados de la Conferencia presentado por el Consejo Directivo de la Unión
Panamericana, México, D.F.; febrero 21–marzo 8, 1945. Unión Panamericana,
Washington, DC, 1946, serie sobre Congresos y Conferencias N° 47, Resolución XXXIX.
Also Connell Smith, G., The Inter American System, Oxford: Oxford University Press,
1966, pp. 209–10.
62 María Teresa Infante Caffi

jurisdiction subject to limits and exceptions.4

References to the Pact in distinct cases before the Court5 revealed new
facets of this instrument, where its scope and technicalities became apparent
in judicial processes, and its clauses called for interpretation. Signs of this
were demonstrated by the reservations made by Bolivia,6 Ecuador,7 and
Peru,8 and those postulated by Argentina (signatory),9 or the positions main-
tained by Venezuela (signatory).10 Fenwick’s comments confirm the above
conclusion,11 which still remain valid since that time. Under Articles LV and
LVI, the Pact expressly acknowledges the right of the parties to make reser-
vations.

4 Lupinacci, J. C., ‘Los Procedimientos Jurisdiccionales en el Tratado Americano de

Soluciones Pacíficas (Pacto de Bogotá)’, Anuario Uruguayo de Derecho Internacional,
1962, pp. 174–83; Jiménez de Aréchaga, E., ‘Tentativas de Reforma del Pacto de Bogotá’,
Anuario Jurídico Interamericano, 1986, pp. 3–11; Infante Caffi, M. T., ‘El Pacto de
Bogotá. Vigencia y Propuesta de Reforma’, Comité Jurídico Interamericano, Cursos de
Derecho Internacional, Vol. 2 (Parte 1), El Sistema Interamericano (1974–2001), pp.
1043–63; Valencia-Ospina, E., ‘The Role of the International Court of Justice in the Pact
of Bogotá’, in Liber Amicorum ‘In Memoriam’ of Judge José María Ruda, The Hague:
Kluwer, 2000, pp. 296–9.
5 Border and Transborder Armed Action (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988; Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J.
Reports 2007; Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2007; Dispute regarding Navigational and Related
Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009; Aerial Herbicide
Spraying (Ecuador v. Colombia), I.C.J. Reports 2008 (discontinued); Maritime Dispute
(Peru v. Chile), I.C.J. Reports 2014; Construction of a Road in Costa Rica along the San
Juan River (Nicaragua v. Costa Rica) (Pending); Certain Activities Carried out by
Nicaragua in the Border Area (Costa Rica v. Nicaragua) (pending); Obligation to
Negociate Access to the Pacific Ocean (Bolivia v. Chile), (pending); Maritime Delimitation
in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) (pending); Alleged
Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia) (pending); Question of the Delimitation of the Continental Shelf between
Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast
(Nicaragua v. Colombia) (pending).
6 Signatories and Ratifications, Pact of Bogotá. Available at: www.oas.org/juridico/
english/sigs/a-42.html#Bolivia (accessed 30 March 2015).
7 Ecuador: Signatories and Ratifications, Pact of Bogotá. Available at: www.oas.org/
juridico/english/sigs/a-42.html#Ecuador (accessed 30 March 2015).
8 Peru: Signatories and Ratifications, Pact of Bogotá. Available at: www.oas.org/juridico/
english/sigs/a-42.html#Perú (accessed 30 March 2015).
9 Argentina: Signatories and Ratifications, Pact of Bogotá. Available at: www.oas.org/
juridico/english/sigs/a-42.html#Argentina (accessed 30 March 2015).
10 In 1987, Venezuela gave praise in favor of the voluntary jurisdiction of the Court and of
an optional clause. Consejo Permanente de la Organización de los Estados Americanos.
Comisión de Asuntos Jurídicos y Políticos, OEA/Ser. G. CP/CAJP-663/87. 19 marzo
1987, Observaciones de los Gobiernos de los Estados Miembros al Nuevo Tratado
Americano de Soluciones Pacíficas (AG/RES.821 (XVI-0/86), pp. 4–5.
11 Fenwick, C. G., ‘The revision of the Pact of Bogota’, American Journal of International
Law 48, 1954, p. 124.
 Latin America and the Pact of Bogotá 63

A direct consequence of the Pact is the termination of the validity of a

series of treaties as enunciated by its Article LVIII. None of these treaties
granted jurisdiction to the Permanent Court of International Justice (PCIJ).
Although the Pact is a treaty historically associated with the Organization of
American States (OAS) and corresponds to what Article 23 of its Charter
indicates, its structure and functioning is autonomous from any other
treaty.12 Some OAS members have also accepted the compulsory jurisdiction
of the Court under Article 36, 2 of the Statute. On the other hand, the
establishment of a PCIJ and the International Court of Justice (ICJ) shows
how Articles 37, 38, and 94 of the Statute of the ICJ owe much to initiatives
of Latin American countries.13
The characteristics of the Pact of Bogotá as a dispute settlement instru-
ment may be systematized as follows:

• It contains a complete set of mechanisms ranging from a diplomatic

means including conciliation and adjudication via judicial and arbitral
procedure;
• It establishes a complex relationship between the recourse to the ICJ,
the competence of the Court, and arbitration, whereas the latter may be
available in case the ICJ declares itself to have no jurisdiction in contro-
versies other than those set out in Articles V, VI and VII of the Treaty
(Article XXXV). It also lists a number of causes that set a limit to the
competence and admissibility of cases before international tribunals as
well as other mechanisms of dispute settlement; and
• It allows for reservations by the parties with the result that they can be
subject to different mechanisms or obligations in respect to each and
every other party.

II The structure of the pact: a test of legal logic

Article II says that:

The High Contracting Parties recognize the obligation to settle interna-

tional controversies by regional procedures before referring them to the
Security Council of the United Nations.

Consequently, in the event that a controversy arises between two or more

signatory states which, in the opinion of the parties, cannot be settled by

12 Quintana, J. J., ‘The Latin American Contribution to International Adjudication: the Case
of the International Court of Justice’, Netherlands Law Review 39, 1992, pp. 127–54.
Also, Fuentes, X., ‘Latin American states and the International Court of Justice’, in Klein,
N. (ed.), Litigating International Law Disputes, Cambridge: Cambridge University Press,
2014, pp. 79–105.
13 Quintana, J. J., ‘The Latin American Contribution to International Adjudication: the Case
of the International Court of Justice’, op. cit. n. 12, pp. 130–1.
64 María Teresa Infante Caffi

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 for in the following articles, or,
alternatively, such special procedures as, in their opinion, will permit them to
arrive at a solution.
For the admissibility of a case, Article II raises a treaty interpretation issue
where the question is whether it is mandatory to exhaust regional mecha-
nisms before moving towards a general procedure. The second point posed
by Article II is whether the opinion to be taken into account is the one
expressed by both parties or by just one of them.
This question arose in a case between Nicaragua and Honduras,14 where
the Court followed the stricter interpretation and the hypothesis of the view
of both parties was upheld.
The point emerged when the IAJC analyzed possible amendments to the
Pact and the proposal to adjust the phrase to state ‘in the opinion of one of
the Parties’ was not approved.15 Ecuador suggested in 1973 to add the term
‘just’ in Article II, to the search of solutions to disputes.16
This approach does not differ substantively from the language of Article
26 of the OAS Charter where in case of a dispute between two or more
American states, which in the opinion of one of the parties cannot be settled
through the usual diplomatic channels, the parties shall agree on a method
of settlement. No power is granted to the Organization to impose a method
to the parties.
Article IV sets another characteristic of the system when it says that: ‘Once
any pacific procedure has been initiated, whether by agreement between the
parties or in fulfillment of the present Treaty or a previous Pact, no other
procedure may be commenced until that procedure is concluded.’ This
clause was discussed in the jurisdiction/admissibility phase of the Border and
Transborder Armed Actions (Nicaragua v. Honduras) case, submitted by
Nicaragua simultaneously with a lawsuit against Costa Rica in 1986.17
Honduras contended that a ‘special procedure’ (Contadora process) was in
place and that according to Article IV of the Pact of Bogotá, Nicaragua was
precluded by it and by ‘elementary considerations of good faith’ from

14 Border and Transborder Armed Action (Nicaragua v. Honduras), Jurisdiction and

Admissibility, Judgment, I.C.J. Reports 1988, pp. 94–6, para. 63–7.
15 CJI/RES.II-13/1985. ‘Dictamen Examen del Tratado de Soluciones Pacíficas (“Pacto de
Bogotá”) tomando en cuenta las reservas que le han formulado los Estados signatarios del
mismo, así como las razones que podrían tener algunos Estados para no ratificarlo a fin de
determinar si, para asegurar su viabilidad, se requiere formular reformas a dicho instru-
mento’, pp. 22–3.
16 Organización de los Estados Americanos, Comisión Especial para Estudiar el Sistema
Interamericano y Proponer Medidas para su Reestructuración. OEA/Ser.P
CEESI/doc.26/73. Vol. IV Parte 2, 8 noviembre 1973, pp. 201–6
17 Border and Transborder Armed Actions (Nicaragua v. Costa Rica), I.C.J. Reports 1986.
Discontinued in 1987.
 Latin America and the Pact of Bogotá 65

commencing any other procedure for pacific settlement until such time as
the said process had been concluded.18
Neither Article II nor IV was found to bar the jurisdiction of the Court. The
Court concluded that the Contadora process did not satisfy the conditions of
negotiations laid down in Article II of the Pact,19 and that at the time of the
application (28 July 1986), the process was concluded within the meaning of
Article IV, so it could not be considered either as a special procedure.20

III The structure of compulsory jurisdiction under the

Pact of Bogotá
The Pact of Bogotá is one of the treaties that established the competence of
the Court following the language of Article 36, 2 of the Statute of the ICJ.21
The role of the ICJ is evident since Article XXXI begins with the words
‘In conformity with Article 36, paragraph 2, of the Statute of the
International Court of Justice’ and that

the High Contracting Parties declare that they recognize, in relation 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 international obligation.

This text, a sort of contractual expression22 of Article 36, 2 of the Statute of

the ICJ places the Pact under the provision of Article 36, 1 of the said Statute.
The discussion on the grounds for compulsory jurisdiction of the ICJ in a
case where the relationship between Article XXXI and XXXII (failing to

18 The Contadora process was defined as a combination of consultation, mediation, and

negotiation.
19 Border and Transborder Armed Action (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, p. 99, para.75.
20 Ibid., p. 105, para 93.
21 Hudson, M., International Tribunals: Past and Future, Washington, DC: Carnegie
Endowment for International Peace and the Brookings Institution, 1944, pp. 173–9.
22 Jiménez de Aréchaga, ‘The Compulsory Jurisdiction of the International Court of Justice
under the Pact of Bogotá and the Optional Clause’, in Dinstein, Y. (ed.), International
Law at a Time of Perplexity Essays in Honor of Shabtai Rosenne, Dordrecht: Martinus
Nijhoff Publishers, 1988, p. 356.
66 María Teresa Infante Caffi

reach agreement in a conciliation procedure) was brought into consideration

was settled in the sense that the two articles (XXXI and XXXII) were consid-
ered separate sources of jurisdiction.23 Therefore, Article XXXII is neither
subordinate nor dependent upon a conciliation procedure previously under-
taken.
A short time prior to this (1985), the IAJC24 unsuccessfully proposed to
amend Article XXXII in order to render the recourse to the ICJ subject to
the previous agreement of the parties whenever they failed to achieve agree-
ment after a conciliation procedure.
The case Nicaragua v. Honduras (1986–1988) gave rise to another
discussion related to Article XXXI of the Pact: firstly, whether the application
of this provision had to be supplemented by a declaration;25 and, secondly,
whether this Article entailed a collective declaration of acceptance of the
compulsory jurisdiction of the Court. In 1988, the Court did not uphold the
first assumption and in respect of the second, it affirmed that Article XXXI
had to be amended by the rules of the Pact itself and not by unilateral decla-
rations of the parties.26 On other matters, faced with two titles of jurisdiction,
the Court affirmed that, firstly, the Pact of Bogotá does not necessarily
prevail over and exclude a second title of jurisdiction and, secondly, the
commitment under Article XXXI of the Pact does not depend upon the exis-
tence of an optional declaration on the same matter.27
In the Nicaragua v. Honduras case, where Nicaragua stated that the
competence of the Court was based on successive Honduran declarations,
and/or by virtue of the provisions of Article XXXI of the Pact of Bogotá and
Article 36, paragraph 1, of the Statute of the Court, the Court gave full
attention to Article XXXI of the Pact.28 The Court decided that article XXXI
was independent of the unilateral declaration of acceptance of the jurisdic-
tion of the Court. ‘The commitment in Article XXXI … is an autonomous
commitment, independent of any other which the parties may have under-
taken or may undertake’.29

23 Border and Transborder Armed Action (Nicaragua v. Honduras), Jurisdiction and

Admissibility, Judgment, I.C.J. Reports 1988, pp. 89–90, para. 47–8.
24 CJI/RES.II-13/1985. Dictamen Examen del Tratado de Soluciones Pacíficas (‘Pacto de
Bogotá’) tomando en cuenta las reservas que le han formulado los Estados signatarios del
mismo, así como las razones que podrían tener algunos Estados para no ratificarlo a fin de
determinar si, para asegurar su viabilidad, se requiere formular reformas a dicho instru-
mento. pp.28–30.
25 United States reservation reflects this approach. Signatories and Ratifications, Pact of
Bogotá. Available at: www.oas.org/juridico/english/sigs/a-42.html#United States
(accessed 30 March 2015).
26 Border and Transborder Armed Action (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, p. 84, para. 34.
27 Ibid., p. 88, para. 41.
28 Ibid., p. 90, para. 48.
29 Ibid., p. 85, para. 36.
 Latin America and the Pact of Bogotá 67

In the Territorial and Maritime Dispute case between Nicaragua v.

Colombia,30 the Court was called to decide whether the declarations made by
the parties under the optional clause (Article 36, 2 of the Statute) could
provide ‘a distinct and sufficient basis of jurisdiction’, irrespective of the
application of the Pact of Bogotá and its Article VI.
Confronted with such a specific situation in the Nicaragua v. Colombia
case, the ICJ refined in 2007 this approach and stated that as its jurisdiction
was on the basis of Article XXXI of the Pact, there was no purpose in exam-
ining the optional clause.31

IV Restrictions and reservations to the Pact of Bogotá:

different sources, same consequences
The Pact validates restrictions to the competence of the Court. Whenever it
declares to be without jurisdiction to hear the controversy by virtue of
Articles V, VI and VII of the Pact, such controversy shall be declared ended,
as Article XXXIV sets forth. Also, according to the wording of Article IV,
‘Once any pacific procedure has been initiated, whether by agreement
between the parties or in fulfillment of the present Treaty or a previous pact,
no other procedure may be commenced until that procedure is concluded.’
Article VI poses a test to the functioning of the Pact. It was introduced
into the Pact following the Peruvian initiative and after a substantive discus-
sion. As the Peruvian delegate stated in 1948, ‘the article must establish the
principle according to which the procedures (under the Pact) do not apply
to matters that have been resolved by an agreement of the parties, by an arbi-
tral award or by the decision of a tribunal.’ Then, the delegate continued: ‘it
would be very dangerous to attenuate the formula. In the first place, it would
be very difficult to attenuate it; secondly, it would open the door to provoke
a dispute, which is exactly what we want to avoid.’32
In the midst of the 1970’s process of restudying the Inter-American
System, while acknowledging that this Article guaranteed the pacta sunt
servanda and res judicata principles, Ecuador33 sought to introduce

30 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections,

Judgment, I.C.J. Reports 2007.
31 Ibid., p. 872, para. 132.
32 Minutes of the Third Session of the Third Commission of the Ninth Inter-American
Conference, 27 April 1948, p. 135. Ministerio de Relaciones Exteriores de Colombia, Novena
Conferencia Internacional Americana, Actas y Documentos, Vol. IV, 1953, pp. 132–6.
33 Reformas que propone la Delegación del Ecuador al Pacto de Bogotá y a la Carta de la
OEA. Organización de los Estados Americanos. CEESI, OEA/Ser.P. CEESI/Subcom.I/
doc.30/73 corr.1. 24 de octubre 1973. And, Exposición del Presidente de la Delegación
del Ecuador, Embajador Galo Leoro F., para fundamentar el Proyecto de Reformas al
Pacto de Bogotá y a la Carta de la OEA, en materia de solución de controversias. CEESI,
OEA/Ser.P. CEESI/Subcom.I/doc.31/73, 23 de octubre 1973, pp.207–208. Also,
Leoro, G., ‘La reforma del Tratado Americano de Soluciones Pacíficas o Pacto de Bogotá’,
Anuario Jurídico Interamericano 1981, pp. 68–9.
68 María Teresa Infante Caffi

exceptions to the rule in respect of the validity or de facto unenforceability of

a treaty, the interpretation or revision of an award or the interpretation of a
decision. This proposal was not upheld by the Special Commission set out by
the OAS to restructure the system.
Reservations made by some states upon signing or ratifying the Pact shed
light on the substance of the said provision. A study conducted by the
General Secretariat of the OAS (1985) commented that some reservations to
Article VI were ‘equal to depriving such acts from their legal effectiveness if
faced with the possibility that already settled disputes might be reopened’.34
Upon signing and ratifying (2011), Bolivia declared that ‘The Delegation
of Bolivia makes a reservation with regard to Article VI, inasmuch as it
considers that pacific procedures may also be applied to controversies arising
from matters settled by arrangement between the Parties, when the said
arrangement affects the vital interests of a state.’ Chile objected to this and
stated that the Pact was not in force between the two countries.35
Peru’s reservation to Article VI was also confirmatory of the jurisdic-
tional character of its content: ‘Reservation with regard to Article XXXIII
and the pertinent part of Article XXXIV, inasmuch as it considers that the
exceptions of res judicata, resolved by settlement between the parties or
governed by agreements and treaties in force, determine, in virtue of their
objective and peremptory nature, the exclusion of these cases from the
application of every procedure.’ In 2006, Peru withdrew this reservation in
the midst of the preparation of a submission against Chile.36 Bolivia did the
same in 2013.37
In conjunction with Articles V and VII, the character of Article VI is
confirmed in Article XXXIV of the Pact that says that ‘If the Court, for the
reasons set forth in Articles V, VI and VII of this Treaty, declares itself to be
without jurisdiction to hear the controversy, such controversy shall be
declared ended.’ These two issues relate to the procedural stages.
Likewise, Article 90 of the OAS Charter (as reformed in 1985) states that
‘In performing their functions with respect to the peaceful settlement of
disputes, the Permanent Council and the respective ad hoc committee shall
observe the provisions of the Charter and the principles and standards of

34 Organization of American States, Permanent Council, OEA/Ser.G CP/doc.1560/85

(Parte II), 9 April 1985. Original: Spanish, pp. 17–8.
35 Objection by the Republic of Chile to the reservation made by the Government of the
Plurinational State of Bolivia at the time it ratified the American Treaty on Pacific
Settlement, Pact of Bogotá. Available at: www.oas.org/dil/a-42_objection_chile_06-15-
2011.pdf (accessed 30 March 2015).
36 Signatories and Ratifications, Pact of Bogotá. Available at: www.oas.org/juridico/
english/sigs/a-42.html#Perú (accessed 30 March 2015).
37 www.oas.org/dil/esp/Nota%20de%20Bolivia.%20ND-039-13.pdf (accessed 30 March
2015).
 Latin America and the Pact of Bogotá 69

international law, as well as take into account the existence of treaties in force
between the parties’.38
The Judgment of the Court of 13 December 2007, closing the prelimi-
nary objections phase in the Nicaragua v. Colombia case concerning the
territorial and maritime boundary dispute, illustrates the jurisdictional system
of the Pact. In this case, provisions contained in Articles VI and XXXIV were
invoked by Colombia to challenge the jurisdiction of the Court. The 2007
judgment followed the approach under which ‘the clear purpose of this
provision was to preclude the possibility of using those procedures, and in
particular judicial remedies, in order to reopen such matters as were settled
between the parties to the Pact, because they had been the object of an inter-
national judicial decision or a treaty’.39
The Court found that the matter of sovereignty over the islands of San
Andrés, Providencia and Santa Catalina had been settled by the 1928 Treaty
‘within the meaning of Article VI of the Pact of Bogotá’, thus considering
the wording of Article I of the Treaty. Therefore, there was no need to
proceed further into the interpretation of the treaty and there was nothing
relating to this issue ‘that could be ascertained only on merits’.40 The Court
used the term ‘settled’ to simplify the reference to the terms ‘settled’ and
‘governed’ employed in Article VI,41 and concluded that it had jurisdiction
under Article XXXI of the Pact to entertain the dispute concerning maritime
delimitation.42
The subtle distinction between the terms ‘settled’ and ‘governed’,
becomes relevant whenever the question is regarding whether a matter is
governed by a treaty negotiated irrespective of the existence of a dispute, or
it has been settled by a third party decision as a conclusion to a dispute

38 Upon signing the Protocol of Amendment of the OAS Charter (1985), Peru stated that it
was only an initial, albeit significant, step in the process of restructuring the Inter-American
system, as provided for in resolution AG/RES. 745 (XIV-0/84):
The Delegation of Peru states by way of a reservation that the powers conferred upon
the Secretary General in Article 116 may not be exercised for matters that have already
been resolved through settlement by the parties or through the decision of an arbitra-
tor or a judgment handed down by an international court, or that are governed by
agreements or treaties in force. Also, in accordance with international law, good offices
are a means of peaceful settlement whose scope has been specified in international
treaties, including the Pact of Bogotá. This procedure assumes the consent of the
parties, and it is in this sense that the Delegation of Peru understands the powers
conferred upon the Permanent Council in the new Article 84 of this Protocol.
Available at: www.oas.org/dil/treaties_A-50_Protocol_of_Cartagena_de_Indias_
sign.htm#Peru (accessed 1 May 2015).
39 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections,
Judgment, I.C.J. Reports 2007, p. 858, para. 77.
40 Ibid., p. 861, para. 88.
41 Ibid., p. 848, para. 39
42 Ibid., p. 869, para. 120.
70 María Teresa Infante Caffi

settlement procedure. The thesis that the Pact does not aim to reopen differ-
ences already settled as well as to protect treaties from revisionist tendencies
has been advanced.43 In the case Bolivia v. Chile, Chile’s preliminary objec-
tion to the jurisdiction of the Court,44 invoked Article VI of the Pact as
encompassing both situations, including but not limited to former disputes
either governed or settled by agreements or a decision.45
As to the effect of Article VI in the sphere of jurisdiction, the question
arises as to the meaning of what is preliminary in light of the facts exposed
by the parties, taking into account Article 79, 1 of the Rules of the Court,
and whether the objection has to be decided before any other proceeding on
the merits.46
In the case Territorial and Maritime Dispute (Nicaragua v. Colombia),
judges Abraham, Al-Khasawneh, Bennouna and Ranjeva were of the opinion
that the objection to the Court’s jurisdiction referred to a matter that did not
have preliminary character as it concerned the merits of the case. Judge
Abraham47 called this to be the effect of the unusual combination of Articles VI
and XXXIV that transmuted a question of merits into a question of jurisdiction.

V Jurisdiction and compliance

Compliance and post-adjudicative enforcement or a monitoring jurisdiction
of the ICJ under the Pact of Bogotá is an issue currently under proceedings
before the Court following the application of Nicaragua against Colombia in
2013 entitled ‘Alleged Violations of Sovereign Rights and Maritime Spaces
in the Caribbean Sea’.48 The point is whether the Court retains an inherent
jurisdiction over the implementation or execution of a judgment or for
ensuring its compliance.49

43 García-Corrochano, L. El Tratado Americano de Solución Pacífica de Controversias (Pacto

de Bogotá), Agenda Internacional, 1997, pp. 55–61. Available at:
http://revistas.pucp.edu.pe/index.php/agendainternacional/article/view/7179/7379
(accessed 16 September 2016).
44 For Bolivia, only previously settled disputes are addressed by Article VI. Obligation to nego-
tiate access to the Pacific Ocean (Bolivia v. Chile), Written Statement, 7 November 2014.
45 Obligation to negotiate access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection
of the Republic of Chile, 15 July 2015.
46 Thirlway, H., The Law and Procedure of the International Court of Justice: Fifty Years of
Jurisprudence, Vol.II, Oxford: Oxford University Press, 2013, pp. 1816–24.
47 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections,
Judgment, I.C.J. Reports 2007. Separate Opinion of Judge Abraham, p. 905, para. 7.
48 Alleged violations of sovereign rights and maritime spaces in the Caribbean Sea (Nicaragua
v. Colombia). Available at: www.icj-cij.org/docket/files/155/17978.pdf (accessed 12 July
2016).
49 Pillepich, A., ‘Article 94’, in. Cot, J. P. and Pellet, A. (eds), La Charte des Nations Unies,
Commentaire par article, vol. II, 3rd ed., Paris: Economica, 2005, p. 1993. Also Oellers
Frahm, K., ‘Article 94’, in Simma, B., Khan, D.E., Norte, G. and Paulus, A. (eds), The
Charter of the United Nations (3rd edition), Oxford: Oxford University Press, 2012, p. 1961.
 Latin America and the Pact of Bogotá 71

For the continuation of the exercise of jurisdiction, the interplay between

Article 60 of the Statute and the Pact of Bogotá must come into operation.
Are there situations in which the Court may retain inherent jurisdiction? So
far, the Court does not appear to have admitted that it has jurisdiction to
deal with the execution of its decisions.50 The Nuclear Test cases51 show that
the concept of ‘inherent powers’ was used in a concise manner, ‘to ensure
that the exercise of its jurisdiction over the merits, if and when established,
shall not be frustrated, and the other being, to provide for the orderly settle-
ment of all matters in dispute, to ensure the observance of the “inherent
limitations on the exercise of the judicial function” of the Court, and to
“maintain its judicial character”’.
The particulars of this issue may be aligned with Article 60 of the Statute
setting out that the judgment is final and without appeal, and that in the
event of a dispute as to the meaning or scope of the judgment, the Court
shall construe it upon the request of any party. There is also the freedom of
the parties after the conclusion of the adjudicatory proceedings, to undertake
negotiations that do not purport to derogate the effect of res judicata of a
given judicial decision.52
Article LVI on denunciation poses other questions to the ICJ jurisdiction,
which are currently submitted to the preliminary objection raised by
Colombia in the case lodged by Nicaragua before the Court entitled
Question on the Delimitation of the Continental Shelf between Nicaragua and
Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua
v. Colombia)53 in 2014.

VI The functioning of the Pact of Bogotá and its bearing

on the jurisdiction of the International Court of
Justice
In hindsight, the situation in which the Pact of Bogotá was perceived as a
useless instrument seems to have been overcome.54 Instead, El Salvador
(1973) and Colombia (2012) have denounced the Pact.

50 Guillaume, G., ‘De l’exécution des décisions de la Cour internationale de Justice’ (1997),
in La Cour internationale de justice à l’aube du XXIe siècle, Le regard d’un juge, Paris:
Éditions A. Pedone, 2003, pp. 178–9.
51 Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 463, para. 23;
Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 259, para. 23.
52 Wellens, K., Negotiations in the Case Law of the International Court of Justice, Farnham:
Ashgate, 2014, pp. 292–3.
53 Question on the Delimitation of the Continental Shelf between Nicaragua and Colombia
beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia). Available
at: www.icj-cij.org/docket/files/154/17532.pdf
54 See Consejo Permanente de la Organización de los Estados Americanos. Comisión de
Seguridad Hemisférica. Solución Pacífica de Controversias en la Organización de los
Estados Americanos. Available at: www.oas.org/csh/spanish/ncsdoc%20soluc%20
pacif.asp#5 (accessed 30 May 2015).
72 María Teresa Infante Caffi

Initiatives such as those taken in 195455 and in 197156 to study possible

amendments or a substitution of the Pact of Bogotá encountered opposition.
In 1971, the IAJC decided in favour of maintaining the Pact in force instead
of proposing amendments. Following this, the process, led by the Comisión
Especial para Estudiar el Sistema Interamericano y Proponer Medidas para su
Reestructuración (CEESI, 1972–1975), was only conducive to reform the
Rio Treaty. In this ambit, Ecuador suggested to give powers to the ICJ to
decide ex aequo et bono upon the failure to reach an agreement in a concilia-
tion procedure according to Article XXXII.57
A new cycle of studies corresponded to the reform process of the Charter of
the OAS and the adoption of the Cartagena Protocol in 1985.58 Developments
of 1984 and 1985, where the IAJC devoted its work to the dispute settlement
systems, provide a picture of the position of states at that time.
Upon the request of the General Assembly of the OAS in 1984
(Resolution 745 (XIV-0/84)) purporting to the study of reforms to the
instruments of the Inter-American System, and of the Permanent Council of
the Organization in respect of the Pact of Bogotá, in particular, the IAJC
undertook a study59 whose results were submitted to the Permanent Council.
Accordingly, a draft of a new pact based on the provisions of the existing Pact
was presented. Colombia then submitted a draft project along the lines of the
committee’s project,60 introducing substantive changes in the recourse to
arbitration and the access to the ICJ upon failure to reach agreement in a
conciliation procedure. Jiménez de Aréchaga criticized this approach.61

55 Dictamen del Comité Jurídico Interamericano sobre el fortalecimiento del sistema intera-
mericano de paz, Organización de los Estados Americanos, Secretaría General,
Recomendaciones e Informes del Comité Jurídico Interamericano, v.X (1967/1973),
Washington, 1978, p. 407. Also, Comité Jurídico Interamericano, OEA/Ser.Q/IV.3. CJI-
6, Trabajos realizados por el Comité Jurídico Interamericano durante el Período Ordinario
de Sesiones celebrado del 16 de agosto al 13 de septiembre de 1971, Noviembre de 1971,
para. 15.
56 Ibid., para. 24.
57 Organización de los Estados Americanos, Comisión Especial para Estudiar el Sistema
Interamericano y Proponer Medidas para su Reestructuración. OEA/Ser.P
CEESI/doc.26/73. Vol.IV Parte 2, 8 noviembre 1973, p. 211
58 Solución Pacífica de Controversias en la Organización de los Estados Americanos. Available
at: www.oas.org/csh/spanish/ncsdoc%20soluc%20pacif.asp (accessed 25 April 2015).
59 CJI/RES.II-13/1985, ‘Dictamen ‘Examen del Tratado Americano de Soluciones Pacíficas
(‘Pacto de Bogotá’), tomando en cuenta las reservas que le han formulado los Estados
signatarios del mismo, así como las razones que podrían tener algunos Estados para no rati-
ficarlo a fin de determinar si, para asegurar su viabilidad, se requiere formular reformas a
dicho instrumento’.
60 Nota del Embajador Representante Permanente de Colombia en relación con el tema
‘Estudio del Tratado Especial a que se refiere el Artículo 26 de la Carta de la Organización
de los Estados Americanos sobre los Medios Adecuados para Resolver las Controversias y
Determinar los Procedimientos Pertinentes a cada uno de los Medios Pacíficos’,
OEA/Ser.P, AG/doc.2030/86, 1 octubre 1986, pp. 1–15.
61 Jiménez de Aréchaga, E. ‘Tentativas de reforma del Pacto de Bogotá’, Anuario Jurídico
Interamericano, 1986, pp. 1–11.
 Latin America and the Pact of Bogotá 73

In sum, the ICJ 1985 and 1986 projects did not seek to derogate the
powers conferred to the ICJ. The phrase contained in the 1987 Report of
the Chairman of the Informal Working Group to Study the New American
Treaty of Peaceful Settlement62 reflects the situation that has prevailed until
today:

The positions taken in the Working Group have made clear the existence
of a substantive disagreement in the Organization concerning the advis-
ability of revising or replacing the Pact of Bogotá. This disagreement
transcends legal considerations and can only be resolved through a polit-
ical agreement among the member states.

In turn, the Pact and its Article XXXI, jointly considered with Article VI, as
part of a corpus juris of international law in the Americas,63 continues to be
scrutinized.

62 Report of the Chairman of the Informal Working Group to Study the New American
Treaty of Peaceful Settlement, Permanent Council of the Organization of American States,
Committee on Juridical and Political Affairs. OEA/Ser.G. CP/CAJP-686/87, 27 July
1987, p. 3.
63 Abello, R., ‘Analyse de la Compétence de la Cour Internationale de Justice selon le Pacte
de Bogotá’, Revista Colombiana de Derecho Internacional, 2005, p. 437.
This page intentionally left blank
Part II
Procedural contribution of
Latin American cases to
the development of
international law
This page intentionally left blank
7 Obligation to negotiate
Karel Wellens

I Introduction
Negotiation ‘is an institution of international law’ situating itself ‘at the cross-
roads of international law and international diplomacy’.1 Negotiations basically
consist ‘of discussions between the interested parties with a view to reconciling
divergent views, or at least understanding the different positions maintained’.2
The distinction between negotiations and consultations – such as the ones
provided in the 1975 Statute on the River Uruguay and in the Ramsar
Convention – both aiming at the protection of the environment and of
shared natural resources – should not be stretched too far as they may grad-
ually merge without clearly moving from one stage to another.3
Latin American cases have played a major role in slowly, but gradually,
putting flesh to the bone of the multifaceted obligation to negotiate in good
faith by providing the International Court of Justice (hereinafter ‘ICJ’ or the
‘Court’) the opportunity to judicially reinforce the central role of negotia-
tions in the present international political and legal order. The obligation to
negotiate operated as a precondition for recourse to the ICJ in the Border
and Transborder Armed Actions case,4 it played an important role in the
community interest regime of the Pulp Mills case 5 and it became the very
subject-matter of the dispute in the case concerning the Obligation to
Negotiate Access to the Pacific Ocean, between Bolivia and Chile (hereinafter
‘Bolivia Chile case’).6

1 A. Watts, ‘Negotiation and International Law’, in P. Borba Casella (ed.), Dimensão

Internacional do Direito. Estudos em Homenagem a G. E. do Nascimento e Silva, São Paulo:
LTr, 2000, p. 519.
2 M. Shaw, ‘Settling Territorial Disputes’, in Liber Amicorum Jean-Pierre Cot. Le procès
international, Bruxelles: Bruylant, 2009, at p. 258.
3 C. Fombad, ‘Consultation and Negotiation in the Pacific Settlement of International
Disputes’, African Journal of International and Comparative Law, 1, 1989, p. 709 and pp.
711–712.
4 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988.
5 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010.
6 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application institut-
ing proceedings, I.C.J. 2013.
78 Karel Wellens

II The legal basis of the obligation

The freedom of any state to choose and conduct its foreign policy in ‘co-
ordination with that of another State’7 constitutes the very basis of any
process of negotiation. Although negotiation may still ‘widely (be) regarded
as essentially a voluntary process’8 and there may be a mere need to negotiate
in case of preferential rights such as the fullest and most unrestricted right of
transit granted to Bolivia pursuant to Article VI of the 1904 Treaty of Peace
and Friendship with Chile,9 the duty to negotiate has gradually evolved to
become one of the general principles of contemporary international law –
although perhaps not as a matter of customary international law10 – a ‘prin-
ciple which underlies all international relations’.11
There is no exhaustion rule under general international law,12 but, for
instance, Articles 12 and 60 of the 1975 Statute on the River Uruguay13 contain
a legal obligation to negotiate prior to instituting proceedings before the ICJ.
Paragraph 13 of the San Isidro de Coronado Agreement of 12 December
1989 is a fine example of a pactum de contrahendo, as it obliged the parties
to ‘negotiate an extrajudicial settlement of the dispute’, which was the
subject of the proceedings.14 On the other hand, it is only rarely that states
find themselves under an obligation not to negotiate without prior consent of
another state, such as, for instance, Chile and Peru pursuant to Article 1 of
the Supplementary Protocol to the 1929 Lima Treaty and Nicaragua and
Costa Rica pursuant to Article VIII of the 1858 Treaty of Limits.15
In the Pulp Mills case, the Court repeatedly underlined the necessity for
parties to ‘implement in good faith the consultation and co-operation proce-
dures provided for ‘through the use of a joint mechanism established by that
treaty’.16

7 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986, p. 133, paragraph 265.
8 A. Watts, op. cit., p. 525.
9 Treaty between the Republics of Chile and Bolivia (Treaty of Peace and Friendship,
Santiago, 20 October 1904).
10 M. Rogoff, ‘The Obligation to Negotiate in International Law: Rules and Realities’,
Michigan Journal of International Law, 16, 1979, p. 153.
11 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 48, paragraph 86.
12 Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections,
Judgment, I.C.J. Reports 1998, p. 303, paragraph 56.
13 Statute of the River Uruguay (1975 Statute) (Salto, 26 February 1975, 1295 UNTS
21425).
14 Treaty of Territorial Limits between Costa Rica and Nicaragua (1858 Treaty of Limits)
(San José, 15 April 1858). Border and Transborder Armed Actions (Nicaragua v.
Honduras), Order of 14 December 1989, I.C.J. Reports 1989, p. 175.
15 Maritime Dispute (Peru v. Chile), Judgment, I.C.J. Reports 2014, p. 3, at p. 52, paragraph
131. Dispute regarding Navigational and Related rights (Costa Rica v. Nicaragua),
Judgment, I.C.J. Reports 2009, p. 251, paragraph 93.
16 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13
July 2006, I.C.J. Reports 2006, p. 134, paragraph 82 and Order of 23 January 2007, I.C.J.
Reports 2007, p. 16, paragraph 53.
 Obligation to negotiate 79

In the Certain Activities case, the Court by way of provisional measure

and motu proprio, judicially imposed the obligation to negotiate on one party
but, after having joined the cases, it did not accede to the request by
Nicaragua to expand the scope to both parties when modifying its previous
order.17 At the merits stage, the Court reiterated ‘the value of ongoing co-
operation between the parties in the performance of their respective
obligations in connection with the San Juan River’, one of these obligations
being to consult and to negotiate.18
According to Bolivia, the legal basis for Chile’s obligation to negotiate has
to be found in unilateral acts, such as an offer to negotiate and commitments
to do so, and ‘agreements, diplomatic practice and a series of declarations’
creating legitimate expectations.19 Judge Gaja mentioned ‘the possibility to
infer from negotiations an obligation to negotiate’.20

III The nature and scope of the obligation

The ‘obligation to be ready to negotiate with a view to concluding an agree-
ment’ today still represents ‘the minimum of international co-operation’.21 In
the Border and Transborder Armed Actions case – where the focus of the obli-
gation was on the peaceful settlement of the dispute – the Court, irrespective
of the opinion of the parties, took into account the nature of the Contadora
process and the fact that no other negotiation was contemplated at the criti-
cal date to conclude that the dispute was not ‘capable of being settled by
direct negotiation through the usual diplomatic channels’.22
Conclusive material is needed to convince the Court that participation
in a process renders unpersuasive a party’s position that the matter has

17 Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011, p. 6, at p. 27, paragraph
86 (2) and Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua): Construction of a Road in Costa Rica along the San Juan River (Nicaragua v.
Costa Rica), Order of 16 July 2013, Provisional Measures, I.C.J. Reports 2013, p. 230, at p.
233, paragraph 14 and at p. 240, paragraph 40 (1).
18 Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
Judgment of 16 December 2015, I.C.J. Reports 2015 (not yet reported), paragraph 228.
19 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application instituting
proceedings, III, paragraph 16, 17–18 and IV, 31.
20 I.C.J., Declaration of judge Gaja, Obligation to Negotiate Access to the Pacific Ocean
(Bolivia v. Chile), Preliminary Objection, Judgment of 24 September 2015, I.C.J. Reports
2015, (not yet reported), paragraph 4 (emphasis added).
21 I.C.J., Dissenting Opinion of judge De Visscher, International status of South-West Africa,
Advisory Opinion: I.C.J. Reports 1950, p. 128, at p. 189 (emphasis added).
22 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, p. 94, paragraph 63, p. 95, paragraph 65 and
p. 99, paragraph 75 (emphasis added).
80 Karel Wellens

already been settled.23 Bolivia used a similar argument in its case against
Chile.24
From the Court’s judgment in the Pulp Mills case it may be concluded
that the obligation to negotiate – oriented towards reaching an agreement
on the modalities of execution of the 1975 Statute – is a merely procedural
one ‘essential to co-operation between States’25 but also a ‘means to bring
about the peaceful settlement of a dispute that is a substantive obligation
under both general and conventional international law’.26 In the Bolivia v.
Chile case the nature of the alleged obligation could turn out to be more
substantive than procedural.
As rightly noted by Judge ad hoc Arbour it is not always clear whether the
judicially imposable obligation as requested by Bolivia is merely one of
conduct or of result.27 Although the Court made it clear that it is not asked
‘to adjudge and declare that Bolivia has a sovereign right of access’ and that
accepting the existence of the obligation would not result in predetermining
the outcome of the process as argued by Chile,28 it is difficult to understand
Bolivia’s third submission as not implying such a right, the line of distinction
being rather thin indeed.29
The obligation is not unlimited in time as both Articles VI and XXII of
the Pact of Bogotá30 and Article 12 of the 1975 Statute illustrate.
Subject to the Court’s determination, the obligation to negotiate comes
to a (temporary) end when the process has led to a successful outcome, when
a particular mechanism may be considered to have been concluded and/or
when according to (one of) the parties the dispute cannot be settled.
Despite the common view of the parties, the Court ruled that the
Contadora process had been concluded: a definitive failure was not necessary,
it was sufficient that there was no prospect of it being continued or resumed.
The fact that the Contadora process played different roles at different times

23 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections,

Judgment, I.C.J. Reports 2007, p. 832, at p. 866, paragraph 109, at p.867, paragraph 113
and at pp. 868–869, paragraph 119.
24 Judgment of 24 September 2015, I.C.J. Reports 2015, (not yet reported), paragraph 47.
25 Pulp Mills on the River Uruguay (Argentina v. Uruguay) Judgment, I.C.J. Reports 2010,
p. 67, paragraph 145.
26 K. Wellens, Negotiations in the Case Law of the International Court of Justice. A Functional
Analysis, Farnham: Ashgate, 2014, p. 32.
27 I.C.J., Dissenting Opinion of Judge ad hoc Arbour, Obligation to Negotiate Access to the
Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment of 24 September 2015,
I.C.J. Reports 2015, (not yet reported), paragraphs 6–8 and 12–13.
28 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection,
Judgment of 24 September 2015, I.C.J. Reports 2015, (not yet reported), paragraph 32.
29 I.C.J., Dissenting Opinion of Judge ad hoc Arbour, Obligation to Negotiate Access to the
Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment of 24 September 2015,
I.C.J. Reports 2015, (not yet reported), paragraph 24.
30 American Treaty on Pacific Settlement (Pact of Bogotá) (Bogotá, 30 April 1948, 30 UNTS
449).
 Obligation to negotiate 81

and the Contadora Group’s own assessment were decisive elements in this
regard.31
During proceedings, parties have co-operational duties towards each other
and towards the Court and these might entail ‘perhaps in statu nascendi, a
corollary duty to continue negotiations and to resume a process which has
previously failed’.32

IV The content of the obligation

The obligation to negotiate in good faith – ‘firmly rooted in general inter-
national law’33 – implies that, in order to render the process of negotiations
potentially successful, ‘parties have to take the necessary measures in order
to create a climate that is conducive’ to the process,34 ‘to maintain a construc-
tive atmosphere’ and ‘to refrain from any conduct which might undermine’
the process and its progress.35 The Pulp Mills case has amply shown the
importance of this latter duty.
‘[T]o embark on disputed activities’ during the period of negotiations
provided for in the 1975 Statute would deprive the relevant procedural
provisions from their purpose and constitute non-compliance with the obli-
gation to negotiate.36
Substantive good faith requires the parties to conduct themselves in a loyal
and reasonable way by giving serious consideration to proposals tabled by the
other party whereas procedural good faith ‘requires inter alia the willingness
to compromise and in case of deadlock further negotiation’.37
It is jurisprudence constante that the ‘content of the obligation to negoti-
ate’ is that states have ‘not only to enter into negotiations with a view to
arriving at an agreement, and not merely go through a formal process of
negotiations … [but that] they are under an obligation so to conduct

31 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and

Admissibility, Judgment, I.C.J. Reports 1988, p. 100, paragraph 80 and pp. 104–105, para-
graphs 89–92.
32 Wellens, op. cit., p. 196.
33 I.C.J., Separate Opinion of Judge Greenwood, Pulp Mills on the River Uruguay (Argentina
v. Uruguay) Judgment, I.C.J. Reports 2010, p. 14, at p. 226, paragraph 16.
34 Wellens, op. cit., p. 296.
35 General Assembly Resolution 53/101, Principles and Guidelines for International
Negotiations, para. 2 (e).
36 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010,
p. 14, at p. 66, paragraph 143 (emphasis added) and at p. 67, paragraph 147. Individual
judges disagreed with the majority on the scope of this prohibition and as to whether or
not the actions had taken place during a still ongoing process of negotiations: Separate
Opinion of Judge Greenwood, at pp. 225–226, paragraph 13, at p. 227, paragraph 16 and
at p. 229, paragraph 22, and Separate Opinion of Judge Keith, at pp. 130–131, paragraph
25.
37 T. Hassan, ‘Good Faith in Treaty Formation’, Virginia Journal of International Law 21,
1981, 443–481, at 476, 478 and 479.
82 Karel Wellens

themselves that the negotiations are meaningful, which will not be the case
when either of them insist upon its own position without contemplating any
modification of it’. States have ‘to pursue them as far as possible with a view
to concluding agreements’ even ‘if an obligation to negotiate (does) not
imply an obligation to reach agreement’.38
The Pulp Mills case provided an opportunity for reaffirmation of these
fundamental requirements and for judges to add that the participation in the
process ‘should be with an open mind’, that ‘a commitment to negotiate
does not imply an obligation to agree’ and that the process should not neces-
sarily ‘lead to a particular outcome’. The ‘commitment to negotiate does not
entail an obligation to reach an agreement’.39
Insisting ‘on a multilateral framework (such as the Contadora process) as
the only acceptable basis for negotiating’ does not only make a claim to offer
to enter into a process untenable,40 but it runs counter to the Court’s
requirements on good faith and it comes close to coercive diplomacy.
In order to properly manage their transboundary river regime, both states
in the Pulp Mills case have established the institutional mechanism of CARU
(Comisión Administradora del Río Uruguay). Their liberty to derogate from
the treaty-based procedures gave rise to divergent opinions between the
parties and among the judges. At the provisional measures stage, the Court
ruled that consultation and co-operation procedures provided for have to be
implemented in good faith and that CARU would constitute ‘the envisaged
forum’.41 At the merits stage – although confirming that the parties were
‘entitled to depart from the procedures laid down by the 1975 Statute’ – the
Court was of the opinion that ‘both parties have the obligation to enable
CARU’ to play its role and ‘to continue their co-operation through
CARU’.42 Bypassing the original institutional framework through direct
negotiations in a different institutional setting such as GTAN (Grupo Técnico
de Alto Nivel) does not necessarily lead to a successful outcome as the case
illustrates.
Denial of the existence of a dispute as allegedly Chile does in the Bolivia

38 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 47, paragraph 85 and
pp. 47–48, paragraph 87.
39 Pulp Mills on the River Uruguay (Argentina v. Uruguay) Judgment, I.C.J. Reports 2010,
p. 67, para. 146, and Separate Opinion of Judge ad hoc Torres Bernardez, p. 261, para-
graph 92 and Separate Opinion of Judge Greenwood, p. 226, paragraph 16.
40 I.C.J., Separate Opinion of Judge Shahabuddeen, Border and Transborder Armed Actions
(Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988,
p. 69, p. 151.
41 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13
July 2006, I.C.J. Reports 2006, p. 134, paragraph 82 and Order of 23 January 2007, I.C.J.
Reports 2007, pp.16–17, paragraph 53.
42 Pulp Mills on the River Uruguay (Argentina v. Uruguay) Judgment, I.C.J. Reports 2010,
p. 62, para. 128 and p. 101, paragraph 266.
 Obligation to negotiate 83

Chile case43 does not ipso facto prove bad faith.44 Whether such an attitude
‘closes any possibility of negotiating a solution’,45 as Bolivia asserts, will be
for the Court to decide.

V Assessment of the process of negotiation and claims of

non-compliance
States and the Court have to make their own assessment of the process of
negotiations and of claims of non-compliance.
In the Border and Transborder Armed Actions case, parties disagreed as to
when the process really started.46 In the Pulp Mills case, parties disagreed on
which of the procedures on prior negotiations had not been followed,
although after having changed the format of the process both parties deter-
mined ‘that the negotiations undertaken within GTAN have failed’.47
While in the Border and Transborder Armed Actions case, the Court was –
given the jurisdictional stage of the proceedings – ‘not called to pronounce on
the legal consequences of a breakdown in the negotiations’, but merely to
determine the nature of the Contadora process, it still noted ‘a more guarded
attitude’ of Honduras compared with a positive approach by Nicaragua
towards the Contadora process48 during which ‘considerable progress has been
achieved on (its) main objective’.49
Although it ‘is not within the inherent jurisdiction of the Court to make
motu proprio a judicial assessment of the parties’ performance,’ there is a duty
for the Court ‘to assess motu proprio the (partial) success of those negotia-
tions’,50 since a dispute must continue ‘to exist at the time when the Court
makes its decision’.51
Until the Bolivia Chile case, it was rather ‘unlikely that issues’, such as
assessment of the process of negotiations and claims of non-compliance with

43 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application institut-
ing proceedings, III, paragraph 29.
44 E. Zöller, La bonne foi en droit international public, Paris: Pedone, 1977, p. 131.
45 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application institut-
ing proceedings, I, paragraph 4.
46 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, p. 98, paragraph 71.
47 Pulp Mills on the River Uruguay (Argentina v. Uruguay) Judgment, I.C.J. Reports 2010,
pp. 64–65, paragraph 135 and p. 38, paragraph 40 and p. 70, paragraph 157.
48 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, p. 99, paragraph 75 (emphasis added) and
p. 98, paragraph 73.
49 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986, p. 145, paragraph 291 (emphasis
added).
50 Wellens, op. cit., p. 50 and p. 198.
51 Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 476, paragraph
58.
84 Karel Wellens

the obligation, would ‘be resolved by a judicial body’.52 Bolivia’s application

obliges the Court to make such an assessment during which it may encounter
four different scenarios: ‘the deadlock may still be there; there is no chance
of resumed negotiations; there is no deadlock; and there is a chance of
resumed negotiations’.53 A survey of the process of negotiations will allow
the Court to assess any prospect of progress.54
The alleged violation not to have negotiated consists in an omission. In
such circumstances the Court requires ‘a lower standard of proof for State
responsibility to be incurred’.55 With regard to the alleged recent change of
Chile’s position into a refusal to resume the negotiations, the Court will
attach ‘corroborative weight’ to ‘the conduct of the parties in negotiations’
during the twentieth century and the first 15 years of the twenty-first
century.56
Bolivia has to provide the Court with sufficient evidence to make it
conclude that one party ‘has consistently refused to consult’ in order to
attribute the failure of the negotiations solely on Chile, while it remains to
be seen whether it can avoid ‘to pronounce on the Parties’ responsibilities for
the failure of the negotiations’.57 Pursuant to the Court’s requirement, the
material presented by the parties should be conclusive to allow the Court ‘to
evaluate the significance of the meetings held’.58 It is clear that given Bolivia’s
submissions ‘a cursory examination of the views, propositions and arguments
consistently maintained by the two sides’59 will not suffice.
As a result of Bolivia’s third submission – which seems to imply a contrario
a claim of Chile’s bad faith – the Court’s judgment might ‘entail a finding of
bad faith which is not explicitly expressed’.60 In order to find ‘the existence
of bad faith “there is something more needed” than the failure of particular

52 Rogoff, op. cit., p. 172.

53 S. Torres Bernardez, ‘Are Prior Negotiations a General Condition for Judicial Settlement
by the International Court of Justice’, in C. Barea et al. (eds.), Liber Amicorum in
Memoriam of Judge José Maria Ruda, The Hague: Kluwer Law International, 2000,
p. 515, paragraph 30.
54 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, p.101, paragraph 81.
55 K. del Mar, ‘The International Court of Justice and Standards of Proof’, in K. Bannelier,
T. Christakis and S. Heathcote (eds.), The ICJ and the Evolution of International Law: The
Enduring Impact of the Corfu Channel Case, London: Routledge, 2012, p. 108.
56 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua interven-
ing), Judgment, I.C.J. Reports 1992, p. 550, paragraph 317.
57 Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7, at
p. 66, paragraph 107 and Dissenting Opinion of Judge Herczegh, at p. 192.
58 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections,
Judgment, I.C.J. Reports 2007, p. 832, at pp. 868–869, paragraph 119.
59 South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary
Objections, Judgment of 21 December 1962: I.C.J. Reports 1962, p. 319, at p. 345.
60 I.C.J., Dissenting Opinion of Judge Yusuf, Whaling in the Antarctic (Australia v. Japan:
New Zealand intervening), Judgment, I.C.J. Reports 2014, p. 226, at p. 402, paragraph 54.
 Obligation to negotiate 85

negotiations’. The lack of result is not the standard to measure whether ‘the
obligation to negotiate has been undertaken in good faith’.61 ‘Clear and
convincing evidence’ has to show ‘that the party concerned did not intend
to engage in meaningful negotiations’.62
When dealing with Bolivia’s request that Chile has to comply promptly
with its alleged obligation to negotiate, the Court will take into account that
‘what period of time may be involved in the observance of duties to consult
and negotiate’ are ‘matters which necessarily vary according to the require-
ments of the particular case’.63

VI Conclusion
Constraints of space do not allow us to touch upon another aspect of the
obligation to negotiate. Indeed, reasonableness appears to play an important
role in both the procedural and substantive faces of the obligation: the
efforts to negotiate and reach an agreement should be made within a reason-
able period of time – that is until and/or unless a reasonable possibility of
the process becoming successful is absent – and the efforts themselves – such
as tabling proposals and responding to them – should be reasonable.
The acquis surfacing from the cases briefly reviewed here may be summa-
rized in the following way.
The question whether a dispute had already been finally settled, whether
it could not be settled or whether it still could be settled has divided the
parties in the cases and will most probably continue to divide parties
confronted with similar exclusion clauses. By skilfully – but not without
attracting criticism from within the Bench64 – distinguishing the subject-
matter of the dispute before it from the matter arguably already settled in the
1904 Treaty, the Court, in the Bolivia Chile case, avoided a decision on the
question whether the matter of the sovereign access to the Pacific Ocean had
indeed already been settled.
The Border and Transborder Armed Actions and Pulp Mills cases have reaf-
firmed that it is first of all up to the parties to make an assessment of their
negotiations, subject to the Court’s own evaluation of the process and which
as the cases have demonstrated may differ from that of the parties.

61 Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of
Macedonia v. Greece), Judgment of 5 December 2011, I.C.J. Reports 2011, p. 644, at p. 685,
paragraphs 132 and 134.
62 Ibid. and I.C.J., Dissenting Opinion of Judge Greenwood, Pulp Mills on the River Uruguay
(Argentina v. Uruguay) Judgment, I.C.J. Reports 2010, p. 14, at p. 227, paragraph 16
(emphasis added).
63 Interpretation of the Agreement of 2 March 1951 between the WHO and Egypt, Advisory
Opinion, I.C.J. Reports 1980, p. 73, at p. 96 paragraph 49.
64 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection,
Judgment of 24 September 2015, I.C.J. Reports 2015, (not yet reported), Declaration of
Judge Gaja, paragraph 4, Separate Opinion of Judge Trindade, paragraph 67, and
Dissenting Opinion of Judge ad hoc Arbour, paragraphs 29 and 30.
86 Karel Wellens

In the Border and Transborder Armed Actions case, the Court reaffirmed
that negotiations should have been pursued ‘as far as possible with a view to
settling the dispute’.65
In the Pulp Mills case, the Court made it clear that during a process of
negotiations states should abstain from even embarking on activities that
would render applicable treaty provisions without purpose and would be
contrary to the procedural obligation to negotiate. Having noted the failure
of both the original and alternative processes, the Court unreservedly
directed the parties back to the negotiating forum as it was established by the
1975 Statute.
The Bolivia Chile case brings together various aspects of the obligation to
negotiate as they manifested themselves in the Border and Transborder
Armed Actions case and the Pulp Mills case. The Court has another oppor-
tunity – Bolivia’s submissions remaining unchanged at the merits stage – to
refine its judicial policy in this regard.
In the Bolivia Chile case, the Court will have to pronounce itself on the
independent existence of the obligation to negotiate. It will have to adjudge
and declare alleged state responsibility for non-compliance66 and in doing so
decide whether the alleged violation, in its procedural aspect – which given
its specific content gives rise to a separate ground for responsibility67 – is of
such a gravity that it amounts to a material breach.68 The Court may possi-
bly judicially impose upon Chile – and inevitably also upon Bolivia – the
obligation to negotiate in good faith without predetermining the potential
outcome of the process while staying well within the boundaries of its judi-
cial function, as it did in Haya de la Torre 69 and duly taking into account
whether there is a reasonable possibility for a successful outcome.
In case of judicially imposed negotiations, the Court may expect to be
informed ‘in particular with regard to the way in which they have been carried
out, or their duration, scope or state of progress’.70

65 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and

Admissibility, Judgment, I.C.J. Reports 1988, p. 69, at p. 95, paragraph 65.
66 Judgment of 24 September 2015, I.C.J. Reports 2015, (not yet reported), paragraph 31.
67 Pulp Mills on the River Uruguay (Argentina v. Uruguay) Judgment, I.C.J. Reports 2010,
p. 14, at p. 49, paragraph 79.
68 I.C.J., Dissenting Opinion of Judge ad hoc Torres Bernardez, Pulp Mills on the River
Uruguay (Argentina v. Uruguay) Judgment, I.C.J. Reports 2010, p. 14, at p. 265, para-
graph 103.
69 Haya de la Torre (Colombia v. Peru), Judgment, I.C.J. Reports 1955.
70 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Provisional
Measures, Order of 8 December 2000, I.C.J. Reports 2000, p. 182, at 200, paragraph 66
(emphasis added).
 Obligation to negotiate 87

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Disputes’, (1989) 1, African Journal of International and Comparative Law,
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T. Hassan, ‘Good Faith in Treaty Formation’, (1981), 21 Virginia Journal of
International Law 1, 443–81.
K. del Mar, ‘The International Court of Justice and Standards of Proof’, in K.
Bannelier, T. Christakis and S. Heathcote (eds.), The ICJ and the Evolution of
International Law: The Enduring Impact of the Corfu Channel Case, London:
Routledge, 2012, pp. 98–123.
M. Rogoff, ‘The Obligation to Negotiate in International Law: Rules and Realities’
(1979) 16 Michigan Journal of International Law, 141–85.
M. Shaw, ‘Settling Territorial Disputes’, in Liber Amicorum Jean-Pierre Cot. Le procès
international, Bruxelles: Bruylant, 2009, pp. 255–81.
S. Torres Bernardez, ‘Are Prior Negotiations a General Condition for Judicial
Settlement by the International Court of Justice’, in C. Barea, J. Barberis, J.
Barboza, H. Caminos, E. Candioti, E. de la Guardia, H. Gutiérrez Posse, G.
Moncayo, and E. Rey Caro (eds), Liber Amicorum in Memoriam of Judge José
Maria Ruda, The Hague: Kluwer Law International, 2000, pp. 507–25.
A. Watts, ‘Negotiation and International Law’, in P. Borba Casella (ed.), Dimensão
Internacional do Direito. Estudos em Homenagem a G. E. do Nascimento e Silva,
São Paulo: LTr, 2000, pp. 519–36.
K. Wellens, Negotiations in the Case Law of the International Court of Justice. A
Functional Analysis, Farnham: Ashgate, 2014.
E. Zôller, La bonne foi en droit international public, Paris: Pedone, 1977.
8 Application for revision of a
judgment (Article 61, Statute
of the Court)
Leonardo Nemer Caldeira Brant1

I The application for revision before the International

Court of Justice
The revision of an international judgment has an ancient origin. In an arbitra-
tion treaty signed between Italy and Argentina back in 1898, Article 13
foresaw that the application for revision of a sentence would be allowed if made
prior to its execution and before the same tribunal that delivered it.2 Following
this, the debate regarding the admissibility of an application for revision contin-
ued during the travaux préparatoires of the 1899 Hague Convention for the
Pacific Settlement of International Disputes. Aptly quoting Abraham Lincoln’s
famous phrase that ‘nothing is settled until is settled right’, the American dele-
gate emphasized that in particular circumstances, the principle of finality of
international awards and judgments has to give way to overriding considera-
tions of equity. He emphatically disagreed with the Russian delegate’s belief in
the absolute primacy of the principle of res judicata.3 Despite Russia’s opposi-
tion, Article 55 of the Convention was adopted and acknowledged the
possibility of a party to demand a revision of the arbitration awards.4

1 The author would like to thank Paula Wardi D. G. Lana and Bruno de Oliveira Biazatti,
both Post-Graduate students in International Law at Instituto de Altos Estudos em Direito
(IAED), for their help in the research and editing of this piece.
2 Brant, L., A Corte Internacional de Justiça e a construção do Direito Internacional, Belo
Horizonte: O Lutador, 2005. p. 431.
3 Zimmermann, A., International Court of Justice: A Commentary, New York: Oxford
University Press, 2006. p. 1302.
4 Article 55 rules:
The parties can reserve in the compromis the right to demand the revision of the award.
In this case, and unless there be an agreement to the contrary, the demand must be
addressed to the Tribunal which pronounced the award. It can only be made on the
ground of the discovery of some new fact calculated to exercise a decisive influence on
the award, and which, at the time the discussion was closed, was unknown to the
Tribunal and to the party demanding the revision. Proceedings for revision can only be
instituted by a decision of the Tribunal expressly recording the existence of the new fact,
recognizing in it the character described in the foregoing paragraph, and declaring the
demand admissible on this ground. The compromis fixes the period within which the
demand for revision must be made.’
 Application for revision of a judgment 89

In the creation of the Permanent Court of International Justice (PCIJ),

the possibility of judgment revision was established in Article 61, which
substantially coincided with Article 55 of the 1899 and 1907 Hague
Conventions for the Pacific Settlement of International Disputes.5 The
Statute of the International Court of Justice (hereinafter ‘ICJ’ or ‘the
Court’) followed the tendency and also recognizes the application for revi-
sion with only some minor semantic changes from the PCIJ’s Statute.6
Furthermore, Article 61 of the ICJ Statute establishes the conditions that
have to be fulfilled in order to apply for revision of a sentence: the applica-
tion must be based upon the discovery of some fact; the nature of this fact
must be decisive; it must be unknown to the Court and also to the party
claiming revision before the sentence was pronounced, provided that such
ignorance was not under malice; the application must be made at latest
within six months subsequent to the discovery of this new fact; and no appli-
cation for revision can be made later than ten years from the date of the
judgment.7
Historically, this procedure hasn’t received the same acceptance as the
application for interpretation8 and it has been considered as merely a recourse
of exceptional nature.9 The Court was confronted with this issue in only
three cases. The first one is the case regarding the Continental Shelf between
Tunisia and Libya. Following this, only two applications for revision were
submitted: the case concerning the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia),10 and the judgment of
11 September 1992, regarding the Land, Island and Maritime Frontier
Dispute between El Salvador and Honduras, with Nicaragua intervening.11
The application for revision of this last case will be further explored in this
chapter.

5 Zimmerman, A., International Court of Justice: A Commentary, op. cit. n. 3, p. 1303.

6 Statute of the International Court of Justice, 26 June 1945, art. 61 [ICJ Statute].
7 ICJ Statute, op. cit., art. 61.
8 The possibility of interpretation of a judgment finds place in the article 60 of the ICJ
Statute. While it has been applied in seven cases (Temple of Preah Vihear, Avena and Other
Mexican Nationals, Land and Maritime Boundary between Cameroon and Nigeria, Aerial
Incident at Lockerbie between Libya and United States, Aerial Incident at Lockerbie between
Libya and United Kingdom, Continental Shelf between Tunisia and Libya, Asylum Case
between Colombia and Peru), the procedure for revision have been applied in only three.
9 Brant, L., A Corte Internacional de Justiça e a construção do Direito Internacional, op. cit.
n. 2, p. 431.
10 Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina),
Judgment, I.C.J. Reports 2003, p. 7.
11 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 interven-
ing) (El Salvador v. Honduras), Judgment, I.C.J. Reports 2003, p. 394.
90 Leonardo Nemer Caldeira Brant

II The application for revision in the case concerning the

Land, Island and Maritime Frontier dispute between El
Salvador and Honduras

A. The original proceedings

In 2002, El Salvador submitted a request for revision of the judgment deliv-
ered on 11 September 1992 by the Court’s Chamber, which was formed to
deal with the case regarding Land, Island and Maritime Frontier Dispute
between El Salvador and Honduras, with Nicaragua intervening. In this
dispute, the Court analyzed three different but interconnected questions.
Firstly, it decided to establish the land boundary between the parties in the
six questionable sectors. The Court also resolved the juridical issues concern-
ing the situation of several islands in Golfo de La Fonseca and the waters that
belonged or were situated close to its proximity.
The third and most relevant point, being the focus of the study, is the
dispute concerning the sixth sector of the land frontier. During the original
proceedings, Honduras defended that this sector boundary would follow the
current stream of the Goascorán River, i.e., the trajectory in which the river
flows into the Gulf north-west of Islas Ramaditas in the Bay of La Unión.
On the other hand, even though El Salvador had recognized the Goascorán
as the limit of the Province as adopted in the time of Spanish colonization,
it claimed that the frontier should be delimited by a previous course of the
river, probably abandoned in the sixteenth century, which reached the Gulf
at the Estero La Cutu.12
In relation to El Salvador’s argument, the Chamber declared that it had
not received any kind of document that might prove the change in the course
of the river, and as a result there existed the lack of scientific evidence capa-
ble of proving that the Goascorán ever had its estuary at Estero la Cutu.
According to the Chamber, El Salvador’s allegation was a new claim, incom-
patible with the history of this controversy, as the party had never made a
demand regarding the possibility of the frontier being delimited by an
alleged old stream of the river, as opposed to that identified by the Court in
1821.13 In addition, the Chamber had access to two pieces of evidence that
supported the theory that the Goascorán already flowed through its current
stream in 1821: the 1974 expedition record and the ‘Carta Esférica’. Thus,
in its 1992 final judgment, the Court decided to establish the sixth sector’s
boundary following the current course of the river.14

12 I.C.J. Reports 2003, op. cit., p. 397.

13 Ibid., pp. 400–401. Considered the critical date of the dispute because it constitutes the
year of independence of Central America from the Spanish Crown and when Honduras and
El Salvador were no longer part of the same larger administrative area.
14 Land, Island And Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
Intervening), Judgment, I.C.J Reports 1992, p. 30.
 Application for revision of a judgment 91

The Submission of the Application for Revision and the Court’s Decision on its
Admissibility
On 10 September 2002, El Salvador submitted its application for revision of
the 1992 judgment, only one day before the ‘ten years after the day of judg-
ment’, which is the deadline established in Article 61 of the ICJ Statute. In
its application, El Salvador cited Article 100, paragraph 1 of the Rules of
Court, requiring the tribunal to proceed to form the Chamber that would
hear the application for revision. The Court decided to accept the demand
and to form a special chamber to deal with the case. This was the first and
only occasion that an application for revision was submitted to a special
chamber of the Court.
The Statute and the Rules of Court foresee a ‘two-stage procedure’ in face
of an application for revision. The first stage is limited to the question of
admissibility of the request. The second one is in relation to the analysis of
the merits of the case, and only occurs if the Court declares the application
admissible. Therefore, in El Salvador’s case, the first step taken by the ICJ
was to decide whether or not the party’s request was compatible with the
conditions established in Article 61 of the Statute.15
The first of these conditions is the discovery of a new fact related to the
case, for which El Salvador pursued two lines of argumentation. The first
being the recent discovery of new scientific, technical and historical evidence
regarding the Goascorán River’s old stream and its abrupt avulsion that
occurred near 1762. The historical proof presented by Salvadoran agents
consisted of a monograph published by the Sociedad de Geografía e História
de Honduras and written by the Departamento de Valle, along with Ulises
Meza Cálix’s work entitled Geografía de Honduras. As technical proof, El
Salvador referred to the study of soil analysis in Goascorán’s estuary zone,
which was undertaken earlier in 2002. Finally, on the subject of scientific
evidence, the party invoked a report developed by the Coastal Environments,
Inc. titled Geologic, Hydrologic and Historic Aspects of the Goascorán Delta –
A Basis for Boundary Determination.16
El Salvador’s second line of argument regarded the cartographic and
documental proof. It argued that in 1992 the Court’s decision regarding the
frontier of the sixth sector was primarily based on copies of documents from
the Naval Museum of Madrid, presented by Honduras: being a nautical letter
and the ‘El Activo’ expedition record. El Salvador, however, claimed that the
original version of these documents was subsequently found in the Newberry
Library, in Chicago, enabling the critical questioning of the reliability of the
copies presented by Honduras and accepted by the Court.17

15 I.C.J. Reports 2003, op. cit., p. 398.

16 Ibid., pp. 401 and 402.
17 Ibid., p. 407.
92 Leonardo Nemer Caldeira Brant

The second condition for admissibility of an application for revision, i.e.,

the decisive nature of the new fact had also been fulfilled, according to El
Salvador. After all, in the Salvadoran view, the 1992 judgment was based on
the assumption that there was not an avulsion of the Goascorán River and,
with the acknowledgement of these new documents, El Salvador believed it
was now in the position to prove its case.18 El Salvador also made it clear that
due to the civil war that had devastated its territory since 1980, and that was
still occurring by the time of the 1992 judgment, the unawareness of these
new facts was not under bad faith. Furthermore, the scientific and technical
evidence could not have been previously obtained as the state of science and
technology in 1992 was still underdeveloped.
In response to these allegations, Honduras argued that the admissibility of
an application for revision must rely on the real discovery of a new fact – and
not only on simple allegations or even on new evidence haphazardly docu-
mented. Considering that the exceptional nature of the revision process
implies rigid requirements for its admissibility, Honduras also affirmed that
any new fact to be considered as such must be in existence prior to the Court
handing down its final judgment. By the 1992 judgment, both the Court
and El Salvador were already aware of the Goascorán River’s possible avul-
sion. This predicated the alleged new fact presented by El Salvador as not
being new and hence unacceptable.19
Moreover, Honduras stated that the new documents presented by El
Salvador before the Court were part of a famous collection that had been
available in the Newberry Library at least since 1927. Thus, El Salvador
could have easily learned of their existence. Honduras also noted that the
internal conflict alleged by the other party could not be considered an
impediment to the conduction of research outside the Salvadoran territory.20
El Salvador claimed that it reasoned its application with new discoveries
concerning old facts. Although, even if these facts were already well known
by the Court, they should again be analyzed in light of these new discover-
ies.21 The Chamber focused on determining whether the new facts brought
by El Salvador fulfilled all conditions established in Article 61, and for this
purpose, it sought to place them back into context. The Chamber stressed
that following this provision, the acceptance of the application relies on the
existence of a new fact being capable of influencing the case in a decisive way
and that was previously unknown to the Court, as well as to the requesting
party before the sentence. Taking into account its definition of a new fact,
the Chamber decided that the facts alleged by El Salvador could not be
considered new in the sense of Article 61’s text.22

18 Ibid., p. 402.
19 Mr Dupuy, CR 2003/3, p. 16. [CR 2003/3]
20 I.C.J. Reports 2003, op. cit., p. 408.
21 Mr Mendelson, CR 2003/2, p. 36.
22 I.C.J. Reports 2003, op. cit., p. 411.
 Application for revision of a judgment 93

The Chamber also sought to investigate if the new facts brought by El

Salvador in the original versions of the ‘El Activo’ expedition report and the
‘Carta Esférica’ had a decisive nature in the Court’s 1992 decision.
Regarding this issue, it observed that there were no significant differences
between the versions presented by El Salvador, which originated from
Chicago, and those conserved in Madrid, which were the basis for the 1992
judgment. Hence, the documents presented by El Salvador only served to
confirm the original judgment.23
Finally, the Court recalled the considerations of principle on which it
relied to carry out its decision regarding the six sectors of El Salvador–
Honduras boundary. During the original proceedings, the Court stated that
the frontier ought to be delimited by the application of the principle gener-
ally accepted in Spanish America of the uti possidetis juris.24 By that time
though, the Chamber had already noted that this main position could be
determined by adjudication and by treaty and, therefore, questioned whether
it could be determined in another manner, such as by acquiescence or recog-
nition, for example. This possibility was considered credible as there was
sufficient evidence showing that the parties had indeed clearly accepted a
variation or at least an interpretation of the uti possidetis juris principle.25
Thus, when the Court denied El Salvador’s request, which argued that the
1821 boundary did not follow the current stream of Rio Goascorán, it did
so based on the El Salvador’s actions during the 1880s, when the parties had
agreed to recognize this river as the sixth sector frontier. The Chamber
observed that in the terms of the 1880s negotiation, the interpretation of the
words ‘River Goascorán’, as meaning a Spanish colonial boundary, which in
1821 followed a long-abandoned course of the river, was deemed out of
question.26 By that, the Chamber concluded that the facts presented by El
Salvador were not decisive factors, and accordingly, the application for revi-
sion was found inadmissible.27

B. Dissenting opinion of Judge ad hoc Paolillo

Judge ad hoc Felipe Paolillo28 presented the only dissenting opinion of the
case. His main disagreement with the majority of the Chamber relied on the
ratio decidendi of the 1992 judgment. In the original proceedings, in what
relates to the sixth sector’s boundary, the Chamber declared that the dispute
between the parties was simple, and concerned only the conflict about

23 Ibid., p. 410.
24 Principle under which administrative colonial boundaries must be respected at the time of
independence, when colonies become sovereign states. Frontier Dispute (Burkina
Faso/Republic of Mali), I.C.J. Reports 1986, p. 565.
25 I.C.J. Reports 2003, op. cit., p. 404.
26 Ibid., p. 406.
27 I.C.J. Reports 2003, op. cit., p. 411.
28 Judge Paolillo was appointed by El Salvador.
94 Leonardo Nemer Caldeira Brant

whether or not the Goascorán River had a previous course different from
that of the current stream, as alleged by El Salvador.
Judge Paolillo also believed that the Chamber did not ask itself whether
or not the documentary evidence brought by El Salvador in its application
for revision could be seen as new facts, since, according to its opinion, the
documents had already failed to satisfy another condition established in
Article 61, being the decisive nature of the fact. However, he thought that if
the Chamber had analyzed the nature of the fact, it would have already
implicitly considered these facts as ‘new’, despite the conflict regarding
whether or not the new evidence could be considered as new facts.
The Judge concluded that since the ratio decidendi of the 1992 judgment
was the lack of evidence on the previous course of the river and on its abrupt
change, any evidence demonstrating the avulsion should be considered a
decisive factor. Finally, Paolillo found it regrettable that the application for
revision was held inadmissible in the first stage of the procedure, and thus
preventing the Chamber from ruling on the merits of the application.29
According to him, this would have allowed the Chamber to maintain or
revise its 1992 judgment on the basis of more robust and reliable informa-
tion than had previously been available during the original proceedings.

III Contribution of the case to the development of

international law and procedural aspects of the ICJ
The application for revision of the case concerning the Land, Island and
Maritime Frontier Dispute between El Salvador and Honduras, although
considered inadmissible by the Court, brought some new debates about
jurisdictional prerequisites and procedural aspects of this mechanism in the
ICJ. Firstly, the discussion relied upon the possible derogation from the
requirements of Article 61, since El Salvador alleged, during the revision
proceedings, that Honduras had implicitly acknowledged the admissibility of
the Salvadoran request. Regarding this affirmation, the Court denied the
possible existence of any form of tacit acceptance from Honduras and made
it clear that revision was not available simply by consent of the parties.
Hence, this case emphasized the importance of the fulfillment of all the
conditions established in Article 61 for the admissibility of revision proceed-
ings and to elucidate that it can’t be agreed upon the parties of the dispute.30
The second collaboration of this case for the ICJ arises from the fact that,
until now, this is the first and only occasion that an application for revision
of a judgment delivered by a Court’s chamber was submitted. The Rules of
Court establishes that ‘[i]f the judgment was given by a Chamber, the
request for its revision or interpretation shall be dealt with by that

29 Dissenting opinion of Judge ad hoc Paolillo. I.C.J. Reports 2003, pp. 424 and 425.
30 Zimmerman A., International Court of Justice: A Commentary, op. cit. n. 3, pp. 1310 and
1311.
 Application for revision of a judgment 95

Chamber’31 and, following this legal framework, a Chamber was formed to

deal with El Salvador’s application. While in the original proceedings, the
Chamber was composed of Judges Shigeru Oda, José Sette-Camara, Robert
Jennings and the Judges ad hoc Nicolas Valticos and Michel Virally; in the
application for revision the new Chamber was composed by Judges Gilbert
Guillaume, Francisco Rezek and Thomas Buergenthal and the Judges ad hoc
Santiago Torres Bernárdez and Felipe Paolillo. Therefore, the Court didn’t
seem to have considered a reconstitution of the original Chamber creating,
instead, a new one. Even if the maintaining of the same judges had been
considered, it would be impossible to make it work, since by 2003 José
Sette-Camara and Robert Jennings were no longer judges in the ICJ and
Shigeru Oda was already at the end of his mandate.
Hence, this case was important for having shown that the possibility of
requesting for revision for a period of up to ten years from the date of the
original judgment was more than theoretical, and for having forced the
Court to face the consequences brought by the use of this whole term. It’s
now clear to the Court that ‘it might be materially impossible to reconstitute
exactly the same chamber. Still, it ought to be generally advisable that the
composition of the new chamber should include – if possible – those
members of the Court who had already participated in the original judgment
and who are still on the bench when the request for revision is brought’.32
Besides, the dispute between Honduras and El Salvador confirmed the
position taken by the Court in all previous cases, i.e., the absence of merely
one of the conditions established in Article 61 is enough for the Court to
declare the petition inadmissible.33 Such a strict standard is necessary given the
exceptional nature of the procedure of revision, and, due to the fact that a
decision accepting the request for revision may threaten legal security by miti-
gating the authority of the res judicata principle. Therefore, the revision of a
judgment that is endowed with the authority of this principle will be accept-
able only within the boundaries of the contribution brought by the new fact.
It is evident that the attenuation of the authority of the res judicata maxim
is considered a necessary consequence of the search for the good adminis-
tration of justice and the loosening of the immutability of a jurisdictional
decision. Nevertheless, the Court still today hesitates to recognize and
perform the mechanism of revision due to the possibility of a threat to the
definitive nature of its decisions.34 The ICJ has historically privileged legal

31 Rules of Court, 14 April 1978, art. 100, para. 1.

32 Zimmerman, A., International Court of Justice: A commentary, op. cit. n. 3, p. 1328.
33 Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina),
Judgment, I.C.J. Reports 2003, p. 12.
34 Brant, L., Godinho, F., ‘O processo de revisão da sentença perante a Corte Internacional de
Justiça à luz de suas últimas decisões (Iugoslávia vs. Bósnia e El Salvador vs. Honduras)’, in
Anuário Brasileiro de Direito Internacional v. 2, Belo Horizonte: O Lutador, 2007, p. 98.
96 Leonardo Nemer Caldeira Brant

security to the detriment of the revision as a manner to guarantee the non-

continuation of the controversy or, as it might be interpreted, in order to
avoid the emergence of a new controversy associated with a previous dispute
already adjudicated. As D. W. Bowett concludes, ‘the respect which States
show for awards would be undermined if the awards lacked finality and bind-
ing force’.35
This obligatory and definitive effect of judicial decisions is a universally
recognized principle36 that is materialized in the legal and social impossibil-
ity of questioning once again the points that have already been decided by
the ICJ.37 Nonetheless, the mere existence of the possibility of revision, by its
very nature, leads to the conclusion that a definitive judgment is not unal-
terable. ‘[T]he history of jurisprudence evidences that regardless of how
advanced a legal system may be, a miscarriage of justice is always possible’.38
However, the decision of the Court to declare inadmissible an application for
revision for the third time may eventually lead to a contrary understanding.
In fact, since 2003, no other application for revision was submitted.

IV Conclusion
Despite the existence of Judge Paolillo’s dissenting opinion, the Court’s
decision on the inadmissibility of the application for revision submitted by El
Salvador maintains its understanding regarding this procedure, as already
demonstrated in previous cases in which this kind of request was made.
Therefore, in the conflict between legal security and good administration of
justice, the Court’s case-law reveals preference to the former. This choice to
maintain the authority of the res judicata principle and to achieve legal secu-
rity and predictability can be explained by the importance of the Court as an
organ dedicated to perpetuate international peace and security – which must
be achieved by means of a definitive sentence.

Bibliography
Doctrine
Bowett, D., ‘Res Judicata and the Limits of Rectification of Decisions by
International Tribunals’, in Revue Africaine de Droit International et Comparé,
September 1996, T.8, nc.3, p. 577.

35 Bowett, D., ‘Res Judicata and the Limits of Rectification of Decisions by International
Tribunals’, Revue africaine de droit International et comparé, 1996, T. 8, nc 3, p. 577.
36 Brant, L., Godinho, F., ‘O processo de revisão da sentença perante a Corte Internacional
de Justiça à luz de suas últimas decisões (Iugoslávia vs. Bósnia e El Salvador vs. Honduras)
’, op. cit. n. 34, p. 99.
37 ICJ Statute, op. cit., art. 60.
38 Zimmerman, A., International Court of Justice: A Commentary, op. cit. n. 3, p. 1301.
 Application for revision of a judgment 97

Brant, L., A Corte Internacional de Justiça e a construção do Direito Internacional,

Belo Horizonte: O Lutador, 2005.
Brant, L., Godinho, F., ‘O processo de revisão da sentença perante a Corte
Internacional de Justiça à luz de suas últimas decisões (Ioguslávia vs. Bósnia e El
Salvador vs. Honduras)’, in Anuário Brasileiro de Direito Internacional v. 2, Belo
Horizonte: O Lutador, 2007, pp. 132–152.
Zimmermann, A., International Court of Justice: A Commentary, New York: Oxford
University Press, 2006.

Judicial decisions
Application for Revision and Interpretation of the Judgment of 24 February 1982 in the
Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia
v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, p. 192.
Application for Revision of the Judgment of 11 July 1996 in the Case concerning
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections
(Yugoslavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003, p. 7.
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), Judgment, I.C.J. Reports 2003,
p. 392.
Frontier Dispute (Burkina Faso/Republic of Mali), I.C.J. Reports 1986, p. 554.
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
Intervening), Judgment, I.C.J Reports 1992, p. 351.

Miscellaneous
Dissenting opinion of Judge ad hoc Paolillo. I.C.J. Reports 2003, p. 413.
I.C.J. Oral Proceedings, Application for Revision of the Judgment of 11 September 1992
concerning the Land, Island and Maritime Frontier Dispute (El Salvador/
Honduras: Nicaragua intervening, CR 2003/2.
I.C.J. Oral Proceedings, Application for Revision of the Judgment of 11 September 1992
concerning the Land, Island and Maritime Frontier Dispute (El Salvador/
Honduras: Nicaragua intervening, CR 2003/3.
9 Discretional intervention
(Article 62, Statute of
the Court)
Beatrice I. Bonafé

I Introduction
Intervention is an incidental proceeding by which the International Court of
Justice (ICJ) can declare the participation of a third state admissible in a case
between two other litigant states. The general purpose of intervention is to
allow the Court to protect the interests of third states that may be affected
by its decision and, therefore, improve the judicial settlement of multilateral
disputes.
However, at the international level litigation is still generally perceived as
a private business between the parties, and third-state intervention is mostly
regarded as an intrusion rather than a means to ensure a better settlement of
a common dispute. There are certainly exceptions: in particular, the partici-
pation of third parties is increasingly secured before judicial bodies
established by international regional organizations in cases where one of the
member states or the organization is involved.
This tension between private and collective interests largely explains why
for years the rules governing intervention have been unclear and the relevant
jurisprudence of the Court has been reluctant to elaborate on the require-
ments of intervention.1 The compromise formula, which was originally
inserted in Article 62 of the Permanent Court of International Justice’s
Statute and was later maintained in the ICJ Statute, was intentionally drafted
in very general terms as no agreement could be found on a number of issues
‘leav[ing] them to be decided as and when they occurred in practice and in
the circumstances of each particular case’.2 Inevitably, this uncertainty has
not prompted third states to ask permission to intervene in cases brought
before the Court; they have generally found other ways to bring to the atten-
tion of the Court their interests that might have been affected by one of its
decisions. Article 62 has been invoked in ten cases by 14 states and three

1 For a general analysis, see C. Chinkin, ‘Article 62’, in A. Zimmermann, C. Tomuschat and
K. Oellers-Frahm (eds), The Statute of the International Court of Justice. A Commentary,
2nd edn, Oxford: Oxford University Press, 2012, p. 1529.
2 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment,
I.C.J. Reports 1981, para. 23.
 Discretional intervention 99

states have been granted permission to intervene. In its case law, the Court
has adopted a rather restrictive approach; it has clarified some controversial
aspects of intervention, but it has left others still unsettled.
After a brief overview of the basic rules governing intervention, the
following analysis will focus on two cases involving Latin American states.
They are particularly useful for explaining the approach taken by the Court
with respect to both the aspects of intervention: those that are today no
longer controversial; those that still require further clarification.

II Rules governing intervention before the court

In addition to Article 62 of the Statute, the main rules concerning so-called
‘discretionary intervention’ are to be found in Articles 81, 84 and 85 of the
Rules of Court. The basic condition of intervention is set out in the Statute:
the third state must show ‘that it has an interest of a legal nature which may be
affected by the decision in the case’. Indeed, the purpose of intervention is to
offer the third state a means by which to protect itself against the possible
effects of a decision of the Court in which it has not been directly involved.
When comparing intervention under Article 62 of the Statute to intervention
under Article 63, the latter ensures the protection of general interests of third
states in the interpretation of multilateral treaties, whereas the protection
afforded by Article 62 is limited to situations in which the specific interests of a
third state may be affected. Article 62 cannot be invoked to seek protection of
rights too remotely connected to the subject matter of the dispute, such as an
interest in the legal rules and principles to be applied by the decision.3 Thus,
the existence of a qualified ‘legal interest’ is a crucial element of intervention,
whose scope largely depends on this requirement. Article 62 does not provide
a definition of the required ‘legal interest’. In its jurisprudence the Court has
clarified that the state seeking to intervene does not have to show that one of
its ‘rights’ may be affected, but simply that one of its ‘interests’ may be
affected. It must show that the interest is the object of a real and concrete claim
based on international law; that it must be connected to the subject matter of
the dispute brought before the Court; and that it could possibly be affected,
in its content and scope, by the Court’s future decision in the main proceed-
ings.4 More generally, the Court’s case law shows that it is not easy for third
states to prove that they have such a qualified legal interest.5

3 Ibid., paras 29–30; Land Island and Maritime Frontier Dispute (El Salvador/Honduras),
Application to Intervene, I.C.J. Reports 1990, para. 76; Sovereignty over Pulau Ligitan and
Pulau Sipadan (Indonesia/Malaysia), Application for Permission to Intervene, Judgment,
I.C.J. Reports 2001, paras 52, 80, 83, 93.
4 See in particular Territorial and Maritime Dispute (Nicaragua v. Colombia), Application of
Costa Rica for Permission to Intervene, Judgment, I.C.J. Reports 2011, paras 23–26.
5 For an analysis of the different types of legal interests that may justify the participation of
third states in contentious cases see B. Bonafé, ‘Interests of a Legal Nature Justifying
Intervention before the ICJ’, Leiden Journal of International Law 25, 2012, 739–757.
100 Beatrice I. Bonafé

While Article 62 does not include other requirements, Article 81 of the

Rules directs states wishing to intervene to specify in their request the ‘object
of the intervention’ as well as ‘any basis of jurisdiction’ existing between the
parties and the third state. As shall be discussed as follows, defining the
‘object’ of intervention had proved extremely difficult for third states at a
time when the Court had not yet made up its mind as to the actual scope of
protection that Article 62 was meant to afford. This issue was closely
connected to that of the so-called ‘jurisdictional link’, which is whether inter-
vention under Article 62 required an agreement between the parties to the
case and the third state seeking to intervene in order for its participation to
be admissible. This was one of the more controversial issues if not the most
controversial issue about intervention, because requiring a jurisdictional link
meant rendering intervention dependent on the consent of the parties. The
other option was to consider that the Statute offered a sufficient legal basis
to that effect, and therefore that third states could intervene notwithstand-
ing the absence of the parties’ consent.
Intervention is an incidental proceeding. Third states seeking to intervene
must file an application to do so before the closure of the written proceed-
ings in the principal case. Article 81, paragraph 1, of the Rules of Court
provides that a third state can submit an application for permission to inter-
vene ‘not later than the closure of the written proceedings’. At that stage,
information regarding the parties’ case can only be found in the application
or the notification of the special agreement. The notification of acts institut-
ing proceedings before the Court to UN members in accordance with Article
42 of the Rules proves essential to the protection of the rights of third states
that may be willing to appear before the Court. The same rationale explains
the now well-established case law of the Court according to which decisions
declaring counter-claims admissible are notified to third states.6 However,
acts instituting proceedings may contain insufficient information. Third
states’ access to the pleadings of the parties might remedy such a situation.
Unfortunately, the Court has interpreted Article 53 of the Rules in a way
that would exclude the release of the initial written pleadings when one of
the parties has objected to it.
The application to intervene triggers an incidental proceeding that entails
a decision by the Court as to the admissibility of intervention. According to
Article 84 of the Rules, the decision is taken after having given the parties
the opportunity to express their views on the conformity of the request with
the Statute’s requirements. If the request is granted, the third state can take
part in the contentious proceedings and be recognized under the procedural
rights provided under Article 85 of the Rules, the extent of which can be
limited by the Court in accordance with what is necessary to safeguard the

6 Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Counter-claims, Order of 17 December 1997, I.C.J. Reports 1997, para. 39.
 Discretional intervention 101

interests of the requesting state.7 The relevant provisions however do not

specify whether other rights can be exercised by the third state, or what the
legal effects would be of the Court’s decision on the merits with respect to
the intervening state.

III Leading cases and the gradual definition of the forms

of intervention
This brief overview should sufficiently illustrate how crucial were the aspects
of intervention not addressed by the drafters of the Statute. Persistent divi-
sions among the members of the Court did not allow for the settling of those
issues in the more detailed provisions of the Rules either. The Court might
well had been left with the task of dealing with the individual circumstances
of each intervention case, but the diverging positions of its members could
hardly have produced something different than the hesitations and ambigu-
ities of its early case law.

A. The object of ‘non-party’ intervention

After some unsuccessful attempts that were complicated by the uncertainty
surrounding the object, scope and basic requirements of intervention, a
chamber of the Court in 1990 admitted for the first time the participation of
a third state, Nicaragua, in the Land Island and Maritime Frontier Dispute
(El Salvador/Honduras) case. This groundbreaking case paved the way to
what is now considered to be ‘ordinary’ intervention before the Court.
In the 1980s, two applications to intervene were rejected by the Court,
mainly due to the absence of a jurisdictional link between the states seeking
to intervene and the parties to the principal proceedings. Malta was denied
permission to intervene because otherwise it would have been able to submit
its own claims without being bound by the decision of the Court.8 Despite
all the efforts of the third state to show that its intention was merely to
inform the Court of the interests it had that might have been affected, Italy’s
request was rejected because its intervention would have involved the intro-
duction of a ‘fresh dispute’ between the third state and the parties and this
‘would have inevitably led the Court to make findings on Italy’s rights’ in
contrast to ‘the basic principle that the jurisdiction of the Court to deal with
and judge a dispute depends on the consent of the parties thereto’.9
Therefore, one might have assumed that, for the Court, intervention neces-
sarily implied the submission of claims related to the subject matter of the

7 Land Island and Maritime Frontier Dispute (El Salvador/Honduras), supra note 3, para.
102.
8 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), supra note 2, para. 32.
9 Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment,
I.C.J. Reports 1984, paras 33–34.
102 Beatrice I. Bonafé

dispute by the third state and accordingly the need for a jurisdictional link.
This would in turn have allowed the Court to make findings on such an addi-
tional dispute, and allowed the decision on the merits to be binding not only
for the parties but also for the intervening state.
The 1990 decision marks a clear departure from this conception of inter-
vention. The Chamber considered that being informed of the third state’s
interests capable of being affected is a ‘perfectly proper’ object for interven-
tion.10 Thus, intervention should be recognized as having a much more
limited aim. The third state would be allowed to intervene in order to give
an exhaustive account of the interests it wanted to be protected. It would not
be in a position to submit new claims. In order to ensure its participation in
the main proceedings, a jurisdictional link would not be required. In addi-
tion, the decision of the Chamber would not be binding for the intervening
state. It was this clear position on the ‘object’ of intervention that allowed
the Chamber to define the legal requirements and effects of intervention
accordingly.
In line with prior decisions of the Court, El Salvador considered that:

If the object of the intervention is to inform the Court of its rights or

claims, Nicaragua will have a full opportunity to do so (as Italy did) in
the oral proceedings to be convened in accordance with Article 84, para-
graph 2, of the Rules, without any need to allow its intervention.11

By contrast, the new conception adopted by the Chamber meant that inter-
vention in the main proceedings had to be kept separate from the incidental
proceedings concerning the admissibility of the request to intervene:

[I]f it were necessary for a State which considered that its legal interests
might be affected by the decision in a case to give an exhaustive account
of these interests in its application for permission to intervene, or at the
hearings held to consider whether permission to intervene should be
granted, there would be no point in the institution of intervention and
in the further proceedings to which it should give rise.12

As a consequence of the position adopted by the Chamber, intervention was

much more accessible to third states. In order to be admitted, they were just
asked to show that their legal interests could possibly be affected; no juris-
dictional link was required to grant permission to intervene; and intervening

10 Land Island and Maritime Frontier Dispute (El Salvador/Honduras), supra note 3, para.
90. Particular attention is devoted to the ‘object’ of intervention by S. Torres Bernárdes,
‘L’intervention dans la procédure de la Cour internationale de Justice’, Recueil des Cours,
vol. 256, 1995, pp. 363–403.
11 Ibid., para. 88.
12 Ibid., para. 89.
 Discretional intervention 103

states were not bound by the decision of the Court. Clearly, the risk was to
open the floodgates of intervention in contentious proceedings. The
Chamber was well aware of that risk and of the need to balance the protec-
tion of third states with the rights of the parties. Indeed, the 1990 decision
did not abandon a restrictive approach towards Article 62 intervention.
First, the Chamber confirmed that a rigorous approach applies to the
determination as to possible legal interests susceptible of being affected. The
circumstances of the case were peculiar: the task of the Chamber was not
only to delimit the frontier line between El Salvador and Honduras but also
to determine the legal regime applicable to the islands and the maritime
spaces in the Gulf of Fonseca. In 1917, the Central American Court of
Justice recognized that the three riparian states – El Salvador, Honduras and
Nicaragua – were co-owners of the waters of the Gulf and concluded that the
waters remained ‘undivided and in a state of community’ between El
Salvador and Nicaragua. El Salvador claimed that this ‘objective legal regime’
had consolidated over time and extended to Honduras. That claim was
opposed by Honduras, which asked the Court to delimit the waters of the
Gulf. What is relevant here is that Nicaragua was inevitably involved in the
case because the Chamber had to establish whether or not the waters of the
Gulf were subject to a condominium. Whatever position the Chamber had
taken in that regard, it would have affected the legal interests of Nicaragua:
‘the very definition of condominium points to this conclusion’. 13
Accordingly, Nicaragua was considered to have a qualified legal interest,
justifying intervention with respect to the question of the legal regime
governing the waters of the Gulf. The question of whether, in the absence of
a jurisdictional link, Nicaragua would have been bound by the future deci-
sion of the Court was later decided by the judgment on the merits: ‘this
Judgment is not res judicata for Nicaragua’.14 If the Chamber could hardly
deny the involvement of Nicaragua in the issue of the applicable regime to
the waters of the Gulf, it displayed a much more restrictive approach when it
excluded that the legal interests of Nicaragua could be affected by the
maritime delimitation. True, the claims of Nicaragua were quite general but
it seems undeniable that Nicaragua had a legal interest in the delimitation.15
The Chamber also confirmed that a mere interest in the applicable legal rules
would not qualify as a sufficient interest under Article 62.16 In addition, it set
a relatively high standard of proof when asking the third state to demonstrate
‘convincingly’ the existence of its legal interest.17

13 Ibid., para. 72.

14 Land Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
Intervening), Judgment, I.C.J. Reports 1992, para. 424.
15 The decision shows that what is difficult to prove is rather the fact that the legal interest
could be affected. See Land Island and Maritime Frontier Dispute (El
Salvador/Honduras), supra note 3, para. 84.
16 Ibid., para. 76.
17 Ibid., para. 61.
104 Beatrice I. Bonafé

The second element that rendered intervention less attractive than it

might have appeared at first was the limited scope of the procedural rights
accorded to Nicaragua, notwithstanding the broad claims advanced by the
intervening state.18 In the 1990 decision, the Chamber made it clear that the
intervening state is not a ‘party’ and its participation in the main proceedings
should be limited to the recognition of the procedural rights provided under
Article 85 of the Rules.19 While Nicaragua was entitled to submit written and
oral observations with respect to the subject matter of intervention as
defined by the Court, it was entitled neither to nominate a judge ad hoc nor
request the reformation of the Chamber as originally constituted. More
generally, the third state cannot exercise all other rights pertaining to the
parties.20
The contours of ‘non-party’ intervention, as defined in the 1990 decision,
have been confirmed by the full Court and this is the sole form of interven-
tion that has been successfully applied for by third states.21 Today, non-party
intervention is considered to be the ‘ordinary’ form of Article 62 interven-
tion.22

B. The restrictive interpretation of the legal interest

Subsequent case law has adopted a similarly restrictive approach with respect
to the requirement of the legal interest that may be affected. In particular,
permission to intervene has been recently denied when the interest of the
third state is connected to a maritime delimitation case. This is unfortunate
because maritime delimitations are the typical situation in which the Court
can take into account third states’ interests without passing judgment on
their claims. Therefore, this approach would entail the rejection of the vast
majority of intervention applications,23 and would clearly be inconsistent with

18 Ibid., para. 41.

19 Accordingly, ‘the intervening State shall be supplied with copies of the pleadings and docu-
ments annexed and shall be entitled to submit a written statement within a time-limit to be
fixed by the Court’, and it ‘shall be entitled, in the course of the oral proceedings, to
submit its observations with respect to the subject-matter of the intervention’.
20 Ibid., para. 102. For a more detailed analysis of the procedural rights of the intervening
state see B. Bonafé, La protezione degli interessi di Stati terzi davanti alla Corte inter-
nazionale di giustizia, Napoli: Editoriale Scientifica, 2014, p. 141 ff.
21 See Land and Maritime Boundary between Cameroon and Nigeria, Application to
Intervene, Order of 21 October 1999, I.C.J. Reports 1999, p. 1029, and Jurisdictional
Immunities of the State (Germany v. Italy), Application for Permission to Intervene, Order
of 4 July 2011, I.C.J. Reports 2011, p. 494.
22 See Territorial and Maritime Dispute (Nicaragua v. Colombia), Application of Honduras
for Permission to Intervene, Judgment, I.C.J. Reports 2011, Dissenting Opinion of Judge
Abraham, para. 8.
23 Out of ten, seven Article 62 applications have been introduced in maritime delimitation
cases.
 Discretional intervention 105

the decision of the (full) Court granting Equatorial Guinea permission to

intervene in the case between Cameroon and Nigeria.24
The 2011 judgment on the application of Costa Rica to intervene in the
maritime delimitation dispute between Nicaragua and Colombia is particu-
larly telling in that regard. Costa Rica’s application to intervene – as is usual
with requests to intervene in maritime delimitation cases – met all the
requirements set out in 1990: its ‘object’ was to inform the Court as to what
the third state’s legal interest was that could be affected;25 the absence of a
jurisdictional link was not an obstacle to the admission of such a form of
intervention;26 and finally a legal interest could be said to exist since the third
state identified an area where its interests overlapped with the rights of the
parties.27 Permission to intervene was denied because the Court excluded the
possibility that Costa Rica’s interests could be affected. The Court treated
this aspect as a separate requirement,28 and added that the requesting state
‘must show that its interest of a legal nature in the maritime area bordering
the area in dispute between [the parties] needs a protection that is not
provided by the relative effect of decisions of the Court under Article 59 of
the Statute’.29 Since the parties did not ask to fix the endpoint in the area
where the interests of the third state might be involved, the Court consid-
ered that it, alone, was able to protect Costa Rica’s interests simply by ending
the line before that area.
This approach is particularly problematic. On the one hand, the inciden-
tal proceedings concerning the admissibility of a request of intervention is
transformed into a sort of amicus curiae procedure: ‘the only way for a third
State to submit information about its interest of a legal nature which may be
affected by a decision of the Court would be to make an application that the
Court considers inadmissible’.30 On the other hand, the existence of ‘alter-
native remedies’ to intervention is not a requirement of Article 62 and the
fact that the Court could be able to protect the interests of the third state
has nothing to do with the purpose of intervention, which affords the third
state the opportunity to give an exhaustive account of its involvement in the
case. The approach of the Court bears a dangerous resemblance to the posi-
tion of El Salvador that the Court rejected in 1990.

24 Land and Maritime Boundary between Cameroon and Nigeria, supra note 21, p. 1029.
25 Territorial and Maritime Dispute (Nicaragua v. Colombia), supra note 4, para. 35.
26 Ibid., para. 38.
27 Ibid., paras 65–66.
28 Ibid., paras 53 and 67.
29 Ibid., para. 87.
30 Ibid., Declaration of Judge Gaja, para. 4. See also Bonafé, supra note 5, p. 474 ff. and
H. Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989.
Supplement 2011: Parts Eleven, Twelve and Thirteen’, British Yearbook of International
Law 83, 2012, pp. 135–137 and 148.
106 Beatrice I. Bonafé

C. The uncertainties still surrounding intervention as a ‘party’

The parallel and similarly unsuccessful attempt of Honduras to intervene in
the same maritime delimitation dispute between Nicaragua and Colombia
provides an opportunity to briefly discuss another unsettled issue concerning
Article 62, namely, whether other ‘objects’ of intervention can be included
in Article 62 and more specifically whether the third state can intervene in a
capacity different from the ‘non-party’ status already recognized under the
Court’s case law.
Honduras asked to intervene either as a ‘party’ or a ‘non-party’. The
Court accepted that ‘a State may be permitted to intervene under Article 62
of the Statute either as a non-party or as a party’,31 and referred to a passage
of the 1990 decision on Nicaragua’s application to intervene which in fact
was rather ambiguous.32 In any case, the Court clarified that ‘party’ inter-
vention required a jurisdictional link33 because its ‘object’ was to allow the
third state to ‘ask for rights of its own to be recognized by the Court in its
future decision, which would be binding for that State in respect of those
aspects for which intervention was granted’.34 As to the legal interest that
may be affected, the Court said that this is a common requirement to all
forms of intervention under Article 62 and added that the ‘rights’ of the state
seeking to intervene have to be connected to the subject matter of the
dispute put before the Court.35
The Court denied Honduras permission to intervene on the basis that it
failed to show that it had a sufficiently qualified legal interest.36 Therefore,
the decision did not rule on a number of aspects of ‘party’ intervention that
remain uncertain. In particular, the legal status of the intervening state and
the precise definition of the ‘jurisdictional link’. Both are crucial in deter-
mining the future of ‘party’ intervention and the willingness of third states
to use it as a means of protecting their interests. As to the former, if ‘party’
intervention is to represent a credible alternative to the introduction of a new
case and a possible joinder with the main proceedings, the Court will have
to accommodate the rights of the parties with the foreseeable result being
that intervening states will attempt to extend their procedural rights beyond

31 Territorial and Maritime Dispute (Nicaragua v. Colombia), supra note 22, para. 27.
32 A clear position in favour of the possibility to trace back to Article 62 two different forms
of intervention had already been expressed by Judge Oda in two dissenting opinions
attached to the Court’s judgments concerning Malta’s request to intervene, supra note 8,
p. 27 ff., and Italy’s request to intervene, supra note 9, p. 91 ff.
33 Territorial and Maritime Dispute (Nicaragua v. Colombia), supra note 22, para. 28.
34 Ibid., para. 29.
35 Ibid., para. 44. One may wonder whether with respect to ‘party’ intervention the third
state has to show that its ‘rights’ rather than its ‘interests’ may be affected as its purpose is
actually to submit claims before the Court.
36 Ibid., para. 75.
 Discretional intervention 107

those recognized by Article 85 of the Rules.37 On the other hand, the juris-
dictional link may represent the real obstacle for third states wishing to
intervene and, if this form of intervention is to have any actual application,
the Court should arguably adopt a flexible approach at least under particular
circumstances. Such an example would be when the participation of the third
state is necessary for the Court to exercise its contentious jurisdiction.38

IV Concluding remarks
The case law concerning intervention reveals how difficult it can be for the
Court to balance the protection of the interests of third states with the rights
of the parties. A major concession to the protection of third states was
accorded in 1990 when it was accepted that intervention, or at least a form
of intervention, did not depend on the principle of consent. However, the
jurisprudence of the Court has adopted a very restrictive approach regarding
the definition of the legal interest that may justify intervention. This may
have reassured the parties that the Court would not accept undue interfer-
ences but it has not prompted third states to have recourse to Article 62.
Apart from the uncertainties still connected to ‘party’ intervention, the least
that can be said is that intervention is far from being an accomplished means
for the protection of third states interests.

Bibliography
R. Bernhardt, ‘Judicial and Arbitral Settlement of International Disputes Involving
More than Two States’, Annuaire de l’Institut de droit international – Session de
Berlin, vol. I, 1999, p. 60.
B. Bonafé, ‘Interests of a Legal Nature Justifying Intervention before the ICJ’,
Leiden Journal of International Law 25, 2012, p. 739.
B. Bonafé, La protezione degli interessi di Stati terzi davanti alla Corte internazionale
di giustizia, Napoli: Editoriale Scientifica, 2014.
C. Chinkin, ‘Article 62’, in A. Zimmermann, C. Tomuschat and K. Oellers-Frahm
(eds), The Statute of the International Court of Justice. A Commentary, 2nd edn,
Oxford: Oxford University Press, 2012, p. 1529.
E. Lagrange, ‘Le tiers à l’instance devant le juridictions internationalles à vocation
universelle (CIJ et TIDM)’, in H. Ruiz-Fabri and J. M. Sorel (eds), Le tiers à l’ins-
tance devant les juridictions internationales, Paris: Pedone, 2005, p. 9.

37 Some authors consider, albeit for different reasons, that ‘party’ intervention has no place
under the Statute; see R. Bernhardt, ‘Judicial and Arbitral Settlement of International
Disputes Involving More than Two States’, Annuaire de l’Institut de droit international –
Session de Berlin, vol. I, 1999, p. 92; E. Lagrange, ‘Le tiers à l’instance devant le juridic-
tions internationalles à vocation universelle (CIJ et TIDM)’, in H. Ruiz-Fabri and J. M.
Sorel (eds), Le tiers à l’instance devant les juridictions internationales, Paris: Pedone, 2005,
pp. 68–69.
38 See B. Bonafé, supra note 20, pp. 174–181.
108 Beatrice I. Bonafé

H. Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–
1989. Supplement 2011: Parts Eleven, Twelve and Thirteen’, British Yearbook of
International Law 83, 2012, p. 1.
S. Torres Bernárdes, ‘L’intervention dans la procédure de la Cour internationale de
Justice’, Recueil des Cours, vol. 256, 1995, p. 193.
10 Intervention by third parties
under Article 63 of the Statute
Luis González García*

I Introduction
The right of third parties to intervene on a question of interpretation of a treaty
of which they are party is well established in international law. In particular, it
is expressly recognised by Article 63 of the Statute of the International Court
of Justice (the ‘Court’) and has been subject to treatment by the referred
Court. The declaration of intervention of Cuba in the Haya de la Torre
(Colombia v Peru) case,1 and the declaration of intervention of El Salvador in
the Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States of America) case2 are arguably the two most signif-
icant cases that contributed to the development of the right of intervention in
international law. In fact, it would be almost impossible for commentators and
academics to discuss the right to intervene under Article 63 without referenc-
ing these two Latin American cases. This chapter will explore the conditions of
intervention under Article 63 of the Statute, the practical problems of inter-
ventions by third states, the impact of these two cases in the development of
the right to intervene and the future of this right in international law.

II The conditions of intervention

Article 63 addresses a situation in which a state is concerned with the inter-
pretation by the Court of a convention to which it is a party. This is a
significant procedural right for third states in international law because states
party to a convention have a legitimate interest in its interpretation since an
interpretation rendered by the Court, which may constitute an authoritative
precedent, may affect the ambit of their obligations under the convention.3

* The author wishes to thank Paloma Carrasco García who assisted with the research on
some points of this chapter.
1 Haya de la Torre (Colombia v Peru), Judgment, 13 June 1951, I.C.J. Reports 1951.
2 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United
States), Order, 4 October 1984, I.C.J. Reports 1984.
3 Palchetti, P. ‘Opening the International Court of Justice to Third States’, (ed.) Max Planck
Yearbook of United Nations Law 6, 2002, p. 141.
110 Luis González García

This is so because an interpretation by the Court may impact on the manner

in which the third state is implementing its rights or obligations under the
treaty and potentially be affected in the future by a claim against it. Article
63 of the Statute reads as follows:

1 Whenever the construction of a convention to which states other

than those concerned in the case are parties is in question, the
Registrar shall notify all such states forthwith
2 Every state so notified has the right to intervene in the proceedings;
but if it uses this right, the construction given by the judgment will
be equally binding upon it.

Therefore, a third party can intervene in proceedings provided that the

following conditions are met: (1) that a party making a Declaration of
Intervention is a party to the convention in question. Problems as to whether
a state is effectively a party to a particular convention will depend on whether
the state consented to be bound by the treaty and for which the treaty is in
force;4 (2) that the construction of a convention must be put into question.
The wording of Article 63 does not appear to refer only to situations where
the construction of a treaty is disputed between the parties to the proceed-
ings. This means that a third state may intervene even when the parties do
not give different interpretations to a treaty as long as the Court is required
to rule on the construction of a convention. A third state may also intervene
in cases of lack of appearance in which the Court must carry out its adjudi-
catory powers by its own initiative;5 and (3) the registrar must notify the
states involved that the interpretation of a convention to which they are party
is disputed in a particular case. This is a rather delicate function of the regis-
trar because it is entrusted with the task of identifying prima facie those
states that are entitled to receive notice under Article 63 (1). However, this
obligation does not mean that a state that has not been notified under Article
63 would be prevented from filing a Declaration of Intervention. In fact,
Article 82 (3) of the Rules of the Court permits a state party to a convention
to intervene even when not in receipt of notice by the registrar. Finally it is
important to note that the judgment of the Court on the legal question of
interpretation of the treaty becomes binding upon the third state intervener
the same way it will be for the parties to the proceedings.

4 Vienna Convention on the Law of the Treaties, 23 May 1969, Article 2. 1155 U.N.T.S. 331,
8 I.L.M. 679.
5 Nuclear Tests (New Zealand v France), Judgment, ICJ Reports 1974, and Request for an
Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of
20 December 1974 in the Nuclear Tests (New Zealand v. France), I.C.J. Reports 1995.
 Article 63 of the Statute 111

III Practical problems

The intervention of third states under Article 63 in cases before the Court
gives rise to complex procedural issues. Firstly, the timing of the Declaration
of Intervention may disrupt the proceedings between the disputing parties
with the consequence of prolonging the proceedings. Secondly, the
Declaration may also be effectively requesting the Court to reopen certain
jurisdictional or substantive issues. Thirdly, a third party intervention could
force a disputing party to respond to the Declaration, which may be seen as
procedurally unfair for a party to the case. Fourthly, an additional problem is
whether the disputing parties can challenge the admissibility of the
Declaration of Intervention. Does a third party have the right to a hearing
on the question of the admissibility of its Declaration? Finally, a further prob-
lem is whether a Declaration of Intervention can take place at the
jurisdictional phase of a proceeding. Can an intervention be rejected because
it ventures beyond the scope of the construction of a convention even
though elements of the Declaration are within the scope of the construction
of a convention? All these procedural problems arose in two Latin American
cases: the Cuban Declaration in Haya de la Torre and the Salvadoran
Declaration in the Nicaragua case.

IV The Haya de la Torre case

The Haya de la Torre case was the first time where intervention under Article
63 of the Statute has been attempted before the Court.6

A. Factual background
On 15 October 1949, Colombia submitted an Application to the Court
against Peru concerning the dispute that arose between the two countries in
connection with the asylum granted to M. Victor Raúl Haya de la Torre in
the Colombian Embassy at Lima. The Court rendered its judgment on 20
November 1950 declaring that the asylum had not been granted in conform-
ity with the Convention on Asylum signed at Havana in 1928.7 Peru then
requested Colombia to facilitate the immediate delivery of the refugee Haya
de la Torre. Colombia contended inter alia that delivering the refugee would
violate the Havana Convention.8

6 The first case dealing with the right to intervene involved the PCIJ in 1923 known as the
SS ‘Wimbledon’ (United Kingdom and others and Poland (intervening) v Germany),
Intervention, Judgment, (1923) PCIJ Series A no 1.
7 Asylum case (Colombia v Peru), Judgment, I.C.J. Reports 1950.
8 Haya de la Torre case, Summary of the Summary of the Judgment, 13 June 1951. Online.
Available www.icj-cij.org/docket/index.php?sum=68&p1=3&p2=3&case=14&p3=5
(accessed 27 August 2015).
112 Luis González García

Colombia then instituted proceedings against Peru before the Court.9

Colombia questioned inter alia whether it was bound to deliver M. Haya de
la Torre to Peru. Peru in sequence equally requested the Court to (1) state
in what manner the judgment would be executed by Colombia; (2) dismiss
the submissions that considered Colombia not bound to deliver the refugee
to Peru; and (3) declare that the asylum ought to have ceased immediately
after the delivery of the judgment of 20 November 1950. Notice of applica-
tion under Article 40 (3) of the Statute of the Court was given to the UN
Members and also to other states entitled to appear before the Court. On 26
January 1951, the Court then notified the states party to the Havana
Convention of their right to intervene under Article 63 of the Statute.

B. The Cuban intervention

As a party to the Havana Convention, Cuba informed the registrar of its
intention to intervene in the proceedings. Cuba attached to its Declaration
a memorandum containing its views in relation to the interpretation of the
Havana Convention as well as its opinion regarding the right of asylum.
Colombia raised no objections to the Declaration made by Cuba. Peru,
however, did so. It argued inter alia that the Cuban Declaration was not
based on the Havana Convention and that the issues raised by Cuba were res
judicata (in the sense that they were decided in the Asylum case). Peru
further contended that the Cuban Declaration was not genuine. A hearing
was held on the issue of the Cuban Declaration. Colombia argued on this
occasion that Cuba should have the right to be heard as a party to the
Havana Convention.

C. The judgment on the intervention issue

In the judgment, the Court first addressed the issue of the admissibility of
the Cuban intervention under Article 63. The Court first dealt with the
question of whether the right to intervene is absolute or allows for the discre-
tion of the Court to reject Declarations. The Court stated that although
Article 63 is ‘as of right’ it is for the Court to decide should the conditions
set forth in the article be satisfied or not. Regarding the contentions made
by Peru as to the inadmissibility of the intervention for being time-barred
and for being, in essence, an attempt to appeal against the previous judg-
ment, the Court observed that interventions are, in every case, incidental to
the proceedings and, therefore, would only be relevant inasmuch as it is
related to the proceedings. By stating this, the Court declared that the

9 Haya de la Torre case, Pleadings, Oral Arguments, Documents: Section A: Application

Instituting Proceedings, 13 December, 1950, p. 7. Online. www.icj-cij.org/docket/
index.php?p1=3&p2=3&k=d4&case=14&code=haya&p3=0 (accessed 26 August 2015).
 Article 63 of the Statute 113

subject matter in this case was indeed new – the surrender of the refugee
Haya de la Torre, which was not addressed in the previous proceedings. It
then moved on to the Cuban intervention related to the interpretation of the
Havana Convention regarding the question of whether Colombia was under
obligation to surrender the said refugee. The Court recognized that most of
the Cuban memorandum was related to issues that had been already decided
in the previous judgment and thus would have no relevance to the present
case. The Court, however, found that the Cuban intervention related to a
new question not decided by the judgment of 20 November 1950 – the
surrender of Haya de la Torre to Peru. Thus, the Court noted, the inter-
vention of Cuba related to a new aspect of the Havana Convention and
accepted Cuba’s intervention.10

D. The impact of the Haya de la Torre case

Perhaps one of the most important contributions of the Court in this case
refers to the concept of admissibility of a Declaration of Intervention. As
clarified by the Court in this case, any objection by the parties as to whether
any Declaration of Intervention is admissible and must be resolved by the
Court. In other words, the admission of a Declaration is not automatic.
Judge Fitzmaurice summarised the point, as follows:

Although intervention under this Article [63] is as of a right, provided

the conditions stated in it are fulfilled, it is naturally for the Court to
decide whether they are actually satisfied or not … Given that these
conditions are present, the Court is bound to admit the intervention,
and has no discretionary power in the matter, as it would seem it must
have under Article 62.11

The judgment is also relevant to the development of the right to intervene

in international law because it clarified the conditions that must be fulfilled
for a Declaration to be admissible. These include that the intervention must
be adequately related to the subject matter of the current proceeding,12 it has
to be deemed ‘genuine’ and cannot be used as an appeal.13 As a result of this
judgment, it appears that the Court modified Article 82(2) of the Rules of
Court in 197814 to further tighten the conditions of intervention as of right.

10 Haya de la Torre, Judgment 13 June 1951, ICJ Reports 1951.

11 Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–4’, 34
Brit Y.B. Intl’L. L. 127, 1958.
12 Ibid. 554. See also Chinkin, C. M., ‘Third-Party Intervention Before the International
Court of Justice’, (ed) The American Journal of International Law 80, 1986, 498.
13 Chinkin, op. cit., p. 509.
14 Zimmermann, A., Tomuschat, C., Oellers-Frahm, K., and Tams, C. J. (ed), Statute of the
International Court of Justice: A Commentary (2nd ed.) n. 1, Oxford University Press,
2012, 1589.
114 Luis González García

V The Nicaragua case

The Nicaragua case is not only considered to be one of the most important
cases15 but also arguably the single most controversial case in the history of
the Court.16 Questions over the treatment by the Court of the Declaration
of Intervention submitted by El Salvador contributes to the overall reputa-
tion of the Nicaragua case. As explained further below, the Nicaragua case
is controversial in relation to the Court’s stance concerning El Salvador’s
Declaration of Intervention for the following reasons: firstly, the decision of
the Court not to hold a hearing; secondly, the rejection of the Declaration;
and, thirdly, the question of errors contained in the Declaration.

A. Factual background and procedural history

On 9 April 1984, Nicaragua commenced proceedings alleging that the
United States had committed actions constituting violation of the prohibi-
tion of the use of force and wrongful intervention in and against Nicaragua
in respect of a dispute concerning the responsibility for military and para-
military activities in Nicaragua.
The Court first dealt with issues of jurisdiction and admissibility. Two days
before the closure of the written proceedings at the jurisdictional phase, El
Salvador filed a Declaration of Intervention under Article 63. In its
Declaration, El Salvador affirmed that ‘the object of its intervention was to
enable it to argue that the Court did not have jurisdiction over Nicaragua’s
Application.’17 In this sense, it made reference to certain multilateral conven-
tions on which Nicaragua based its arguments against the US, but did not
mention any specific provisions. These conventions were the Statute of the
International Court, the Charter of the UN, the Charter of the Organization
of American States, the Convention Relative to the Duties and Rights of
States in the Event of Civil Strife and the Convention on Rights and Duties
of States. These treaties, it argued, gave El Salvador the right to demand
Nicaragua to cease intervention in the internal affairs of the state and provide
reason to intervene in the present proceedings.
Following the request for intervention by El Salvador, the parties were

15 LJIL Symposium: Discussion of the I.C.J. Nicaragua Judgment, by Dov Jacobs. Online.
Available http://opiniojuris.org/2012/03/20/ljil-symposium-discussion-nicaragua
(accessed 27 August 2015). Regarding the relevance of the Nicaragua case in the devel-
opment of international law and the impact in the use of the Court by developing states
see Kohen, M., ‘The Principle of Non-Intervention 25 Years after the Nicaragua
Judgment’, (ed) Leiden Journal of International Law 25, March 2012, 157–64 and Fisler,
L., ‘The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or
In Between?’, (ed) Leiden Journal of International Law 25, March 2012, 135–47.
16 Llamzon, A. P., ‘Jurisdiction and Compliance in Recent Decisions of the International
Court of Justice’, Eur J Int Law 18 (5), 2007, 815–52.
17 Nicaragua case, Declaration of Intervention by El Salvador, ICJ Reports 1984.
 Article 63 of the Statute 115

invited to submit written observations regarding the matter pursuant to

Article 83 of the Rules of Court.
On the one hand, Nicaragua stated not to have ‘any objection in principle
to a proper intervention by El Salvador’18 but referred to apparent deficien-
cies in the Declaration and noted that El Salvador had included in the
referred document as ‘a matter of record’ that it felt ‘under pressure of an
effective armed attack’. In this line, Nicaragua contended that Article 63
‘does not permit intervention for the purpose of opposing jurisdiction or to
make things as a matter of record but only for the purpose of the interpret-
ation of an identified provision of a convention’.19 Finally, Nicaragua stated
that Article 85 of the Rules of Procedure refers to time-limits in order to ‘call
the Court’s attention’20 to the prompt disposition of the present jurisdic-
tional phase and the urgency of a speedy determination on the merits. On
the other hand, the US stated that El Salvador’s Declaration of Intervention
was timely.21
In a further supplementary submission, El Salvador argued that Nicaragua
was ‘preventing El Salvador from exercising its procedural right to oral
proceedings before the Court in the event of an objection’.22

B. The order on the intervention issue

By Order of 4 October 1984, the Court rejected El Salvador’s Declaration
of Intervention. It did so without holding a hearing and without providing
the reasons for such denial of a hearing. The voting finalised as follows: by 9
to 6 votes: not to hold a hearing on the Salvadoran Declaration; by 14 to 1
(that of Judge Schwebel) that the Salvadoran Declaration was inadmissible
‘inasmuch as it relates to the current phase of the proceedings’.23 However,
El Salvador did not make any new attempts to intervene. Several judges
appended separate (including dissenting) opinions to the Order. Judge
Schwebel’s dissent is perhaps the strongest against the Court’s ruling.

18 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States
of America) case, Letter from the Agent of Nicaragua to the Registrar Submitting the
Observations of Nicaragua on the Declaration of Intervention of El Salvador, I.C.J. Reports
1984, p. 465. Online. Available www.icj-cij.org/docket/files/70/9623.pdf (accessed 27
August 2015).
19 Ibid. at 466.
20 Ibid.
21 Written Observations on the Declaration of Intervention: Letter from the Agent of the United
States of America to the Registrar of the International Court of Justice Submitting the
Observations of the United States on the Declaration of Intervention of El Salvador, I.C.J.
Reports 1984, 467.
22 Ibid., p. 473.
23 Order, 4 October 1984, I.C.J. Reports 1984, p. 215.
116 Luis González García

C. The impact of the Nicaragua case

Although it can hardly be called ‘contribution’, the Court’s evaluation of the
Salvadoran Declaration in the Nicaragua case has had an impact on the
discussion and debate concerning the right of intervention in international
law. The following are the most important controversial points of the
Court’s decision in this case.

D. The issue of the hearing

In his dissent, Judge Schwebel criticises the decision of the Court not to hold
a hearing for El Salvador. He argued that the Court had not acted according
to the observance of the due process that characterises it. This proved a valid
point. In my opinion, even if the Court was right in rejecting the Salvadoran
Declaration, one would expect that such decision could only be taken after
granting an opportunity to El Salvador to state its position. It appears that
the Court was more concerned with the protection of the procedural rights
of the disputing parties than with the balance of the interest of all parties.
Commentators have criticised the Court’s restrictive approach towards the
rights of third parties under Article 63.24 As Professor Chinkin notes, it is not
‘realistic’ to think solely of the integrity of the parties and leave aside the
protection of ‘third party’ rights.25 Again, one may wonder why the Court
failed to follow its own approach in the Haya de la Torre case where it
granted a hearing to Cuba even though it was not obliged to do so under
the rules then in force.26 But perhaps the most striking aspect of the Court’s
ruling on this point is the fact that there is no further explanation on the
reason why it decided ‘not to hold a hearing’. As Judge Schwebel explains,
if the court had granted a hearing to El Salvador to intervene rather than just
literally interpreting Nicaragua’s written submission, it would have been
more in accordance with judicial propriety. The Court should have regarded
this as an objection, and this would have presented an opportunity for El
Salvador to be heard.

1. The requirements
Even should one accept the point that the Salvadoran Declaration pertained
to different elements only relevant to the merits phase, it is, however, diffi-
cult to understand why it rejected the declaration in toto.27 There is no

24 Greig, D. W., ‘Third Party Rights and Intervention Before the International Court’,
Virginia Journal of International Law 32, 1992 (n 6), 317; Chinkin C. M., ‘Third-Party
Intervention Before the International Court of Justice’, op. cit. n. 12, p. 511.
25 Ibid.
26 Article 66(2) of the Rules of the Court.
27 Sztucki, J., ‘Intervention under Article 63 of the ICJ Statute in the Phase of Preliminary
Proceedings: The Salvadoran Incident’, The American Journal of International Law,
October 1985, 1012.
 Article 63 of the Statute 117

apparent reason to justify the Court’s decision to apply a distinct reasoning

from that of the Haya de la Torre case where it allowed Cuba to intervene by
reducing the intervention to the limits that were applicable to the proceed-
ings (‘reduced in this way and operating within these limits’).28 In the
Nicaragua case, the Court could have acted in the same manner by separat-
ing the elements that were admissible to the case and rejecting those that
were not applicable, instead of rejecting the declaration as a whole. It is also
striking for the lack of reasons given by the Court in order to reject the decla-
ration in the jurisdictional phase, as well as the remaining obscurity of certain
elements that were not clarified in the separate opinions. As Judge Schwebel
stated in his opinion, the Court’s rejection of the declaration of El Salvador
at the jurisdictional phase is questionable since there is no apparent reason
why intervention should not be allowed on issues of jurisdiction and admis-
sibility of a case.29 The Order does not provide an answer or present elements
that would lead to identify the reason why the Court decided to reject the
Declaration at the jurisdictional phase.

2. Failure to comply with Article 82 of the Rules

The rejection of the Declaration has also been subject to criticism due to the
fact that the Declaration was dismissed merely on the basis of some formal
errors that could have been amended at the hearing. Some commentators
have stated that the requirements outlined in Article 82 were taken too far
to be used as grounds to dismiss an application that could have been other-
wise perfectly valid.30 As Professor Greig notes, the Rules of Procedure
should not be contemplated as ‘additional obstacles’ for intervention.31 For
this reason, he argues that, by requiring the parties to identify the provisions,
Article 63 was given an analogous interpretation to that of Article 62 since
the Court is requiring the states to prove their legal interest in the proceed-
ings in order to admit intervention. Greig concludes by saying that the
distinction between both articles has been blurred as a result of the said inter-
pretation of Article 63.32

VI The future of Article 63

Article 63 is no doubt a powerful tool for third states to ensure a more coher-
ent interpretation of a treaty to which they are party to. But since the

28 Haya de la Torre, Judgment, ICJ Reports 1951, p. 77.

29 Zimmermann, A., Tomuschat, C., Oellers-Frahm, K., and Tams, C. J. (eds), Statute of the
International Court of Justice: A Commentary, op. cit. n. 14, p. 1581.
30 Greig, D. W., ‘Third Party Rights and Intervention Before the International Court’, op.
cit. n. 24, p. 313.
31 Ibid.
32 Ibid.
118 Luis González García

decision of the Court in the Haya de la Torre case to admit the Cuban inter-
vention it has not become a routine for third states to exercise the Article 63
right to intervene in proceedings before the Court. To this point, Article 63
has been invoked in only five cases in the history of the World Court (includ-
ing the Permanent Court of International Justice): (1) S.S. Wimbledon;33 (2)
Haya de la Torre;34 (3) the Nuclear Tests case;35 (4) Nicaragua case36 and,
more recently, (5) Whaling in the Antarctic case.37 It may be argued that the
restricted use of Article 63 is explained by the fact that this article was
intended to protect a more limited interest of legal nature, i.e. the construc-
tion of a convention.38 Another reason relates to the fact that there are legal
consequences in case a third state decides to intervene under Article 63: the
decision of the Court becomes binding on the third state. This distinctive
feature of Article 63 may be a reason to dissuade any interested third party
in participating in a case. But perhaps a more logical reason for the lack of
use of Article 63 may relate to the rejection of the Salvadoran Declaration in
the Nicaragua case. The Court’s approach on the Salvadoran Declaration
was in favour of the rights of the parties to the detriment of the rights of
third states. The Court’s approach in the Nicaragua case resulted in a posi-
tive contribution by clarifying that Article 63 provides a limited right on a
question of interpretation and should not be used by states as a general right
to deliver submissions on facts or law relating to particular cases. This is
perhaps the most important contribution of the Nicaragua case to the right
to intervene under Article 63. There is, however, an unintended conse-
quence of the Court’s ruling. As a result of the unfortunate treatment of El
Salvador, the rejection of the Salvadoran Declaration may have caused third
states to shift towards the right to intervene under Article 62 as a more appli-
cable avenue to protect their interests. Article 62 is based on an interest in
legal nature that may be affected by a ruling issued by the Court. It is
intended to protect a wider set of rights, as opposed to the narrower aspect
of ‘construction of a convention’. One may wonder whether El Salvador
would have been successful in its attempts to intervene in the Nicaragua case
if it had submitted its interest to intervene also under Article 62 of the
Statute. As Professor Chinkin notes, there seems to be no reason why a state
cannot use them simultaneously.39

33 Supra (n 6).
34 Supra (n 1).
35 Supra (n 5).
36 Supra (n 2).
37 Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment, 31
March 2014. Online. Available http:www.icj-cij.org/docket/files/148/18136.pdf
(accessed 27 August 2015).
38 Rosenne, S. Intervention in the International Court of Justice, Boston: Martinus Nijhoff
Publishers, 1993, p. 73.
39 Chinkin, C. M., ‘Third-Party Intervention Before the International Court of Justice’, The
American Journal of International Law 80, 498.
 Article 63 of the Statute 119

Now, when looking forward into the future, there appears to be a glimpse
of a new direction in the Court’s approach to third party intervention. By
granting intervention to New Zealand under Article 63 in the recent judg-
ment in the Whaling in the Antarctic case – where the Court seems to have
applied a similar approach as in the Haya de la Torre case – the Court took a
positive step to the protection of third party rights and to the balance of
interests in proceedings under multilateral treaties. This apparent new
approach is particularly important in Latin America where states continue to
take steps towards multilateralism, which is the path that international law
has been increasingly following during the last decades. A fair dispute settle-
ment system in a multilateral sphere necessarily involves the right of third
states to intervene in a question of interpretation. As stated by New Zealand
in its submissions before the Court, Article 63 is an integral part of the
Court’s framework as a forum for resolution of international disputes under
multilateral treaties. By affirming New Zealand’s right to intervene, the
Court appears to be acknowledging the importance of the concept of equal-
ity of interests between all parties to a multilateral treaty, not only favouring
the interests of the parties involved in the dispute. Doing so will promote the
rule of law, which is a positive development of international law.
11 Request for interpretation
of a judgment
Karin Oellers-Frahm

I Introduction
According to Art. 60 ICJ Statute ‘[t]he judgment is final and without
appeal.’ There are, however, two alternative meanings concerning ‘review’ of
a judgment: the first one being interpretation (Art. 60 ICJ Statute); the
second being revision (Art. 61 ICJ Statute). While revision may lead to a
partially or totally different/new judgment, interpretation does not affect
the res judicata; it adds nothing to the decision, but allows only for guidance
to be given by the Court with regard to the meaning or scope of the judg-
ment. Both meanings of ‘review’ are extremely rarely used;1 however,
interpretation has recently gained more attention, in particular in combina-
tion with a request for provisional measures.2

1 Request for Interpretation of the Judgment of 20 November 1950 in the Asylum case
(Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 401; Application for Revision and
Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental
Shelf (Tunisia/Libyan Arab Jamahiriya), (Tunisia v. Libyan Arab Jamahiriya), Judgment,
I.C.J. Reports 1985, p. 223, para. 56; Request for Interpretation of the Judgment of 11 June
1998 in the Case concerning the Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria), Preliminary Objections, (Nigeria v. Cameroon), I.C.J.
Reports 1999, p. 31 ss; Request for Interpretation of the Judgment of 31 March 2004 in the
Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America),
Order of 16 July 2008, I.C.J. Reports 2008, p. 311 and Judgment of 19 January 2009, I.C.J.
Reports 2009, p. 3 ss; Request for Interpretation of the Judgment of 15 June 1962 in the Case
Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Order of 18 July 2011,
I.C.J. Reports 2011 and Judgment of 11 December 2013, I.C.J. Reports 2013, p. 281 ss. Only
three requests for revision have been brought before the Court which were all declared
inadmissible: Application for Revision and Interpretation of the Judgment of 24 February
1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya),
(Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, p. 223, para. 56;
Application for Revision of the Judgment of 11 July 1996 in the Case concerning the
Application of the Convention for the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia) (Yugoslavia v. Bosnia and Herzegovina),
Preliminary Objections, I.C.J. Reports 2003, p. 7 ss.; Application for Revision of the
Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime
Frontier Dispute (El Salvador v. Honduras: Nicaragua Intervening), (El Salvador v.
Honduras), I.C.J. Reports 2003, p. 392 ss.
2 Infra 3.2. and 3.3.
 Request for interpretation of a judgment 121

Interpretation proceedings3 are rather limited in scope because the Court

may only construe the judgment, but not touch upon its res iudicata. The
advantage of an interpretation request is that it does not give rise to any
question of jurisdiction because the competence to construe the judgment
follows from the competence to decide the underlying case. Even if one or
both parties to the original case have in the interim withdrawn their consent
to the Court’s jurisdiction, the competence to decide an interpretation
request is unaffected, a fact that may explain the use of the interpretation
proceedings in situations referring rather to the follow-up of the original
judgment or to new controversial situations, which are only loosely
connected to the original judgment.4 Furthermore, there are no time-limits
for a request of interpretation, so that a request for interpretation registered
at the Court in 2011 in relation to a judgment delivered in 1962 is no bar
to admissibility.5 The crucial question in interpretation proceedings is
whether a ‘dispute’ as to the meaning or scope of the judgment has arisen
and what is the meaning and scope of the judgment, i.e. what was decided
with res iudicata effect. As Latin American states have always been particu-
larly active in the use of the various procedural means provided for in the
Statute of the ICJ,6 Latin American states also performed a significant role in
bringing to life interpretation proceedings. The very first request for inter-
pretation of a judgment concerned the Asylum case between Colombia and
Peru,7 and the pilot case establishing a new scenario by combining a request
for interpretation with a request for provisional measures – giving rise to
controversies concerning the involvement of the Court in post-judgment
developments – was also brought before the Court by a Latin American
state, namely Mexico in the Avena case.8

II The Asylum case

The case originated from the fact that a Peruvian statesman, Mr Haya de la
Torre, who was accused of having plotted a (unsuccessful) military coup

3 For a comprehensive analysis see A. Zimmermann, ‘Article 60’, in Zimmermann, A.,

Tomuschat, C., Oellers-Frahm, K., and Tams, C.(eds.), The Statute of the International
Court of Justice – A Commentary, 2nd ed., Oxford: OUP, 2012, 1469 ss.
4 Oellers-Frahm, K. ‘Provisional Measures in Interpretation Proceedings – a new way to
extend the Court’s jurisdiction? The practice of the Court in the Avena and Temple of
Preah Vihear cases’, in Elias, O., and Jalloh, C. (eds.) Shielding Humanity: Essays in
Honour of Judge Abdul G. Koroma, Leiden/Boston: Brill/Nijhoff, 2015, pp. 61–84.
5 This was the case in the Temple of Preah Vihear case, op. cit. n. 2.
6 Oellers-Frahm, K., ‘The part of the International Court of Justice in solving disputes
between American States’, L’Observateur des Nations Unies 24, 2008, pp. 7–35.
7 Asylum case, (Peru v. Colombia), Judgment, I.C.J. Reports 1950, p. 266.
8 Request for interpretation of the Judgment of 31 March 2004 in the case concerning Avena
and other Mexican Nationals (Mexico v. United States of America), I.C.J. Reports 2009, pp.
3 ss.
122 Karin Oellers-Frahm

d’état against his government, was granted asylum in the Colombian

Embassy in Lima in 1949. The dispute between Peru and Colombia
concerned the question whether Colombia had the right to grant diplomatic
asylum in distinction to territorial asylum and whether Mr Haya de la Torre
should be granted safe conduct out of the country. The Court decided on
the basis of the Havana Convention on Asylum of 1928 and customary
(regional) law that it was not for Colombia to qualify the nature of the
offence committed by Mr Haya de la Torre as a common crime or a politi-
cal offence and that Peru was not obliged to provide safe conduct for him to
leave the country. Furthermore, the Court found in favor of a counter-claim
of Peru that the asylum had been irregularly granted. The very day of the
delivery of the judgment, Colombia submitted a request for interpretation
before the Court asking, in particular, for clarification of the question
whether Mr Haya de la Torre should be surrendered to Peru.

A. Prerequisites for a request under Art. 60 ICJ Statute

Art. 60 cl. 2 provides that in the event of a dispute as to the meaning or scope
of a judgment any party may request the Court to construe the judgment.
The term ‘dispute’, which is used in the English version of the Statute also
in Art. 36 (6) and Art. 38 (1), is reflected in both the French and the Spanish
version of the Statute in different terms: ‘différend’ in Art. 38 (1) and
‘contestation’ in Art. 36 (6) and 60; and in the Spanish version ‘desacuerdo’
in Art. 60, ‘disputa’ in Art. 36 (6) and ‘controversia’ in Art. 38 (1). There
are, thus, good reasons to hold that the general concept of the term ‘dispute’
as ‘a disagreement on a point of law or fact, a conflict of legal views or inter-
ests’9 is not necessarily applicable to Art. 60.10 Furthermore, a request for
interpretation requires that the dispute must relate to the scope or meaning
of the judgment. The interpretation of a judgment can therefore neither put
into question the res iudicata of the principal judgment nor broaden the
scope of that judgment; it has to keep within the limits of the original judg-
ment and to seek only clarification of what the Court has decided with
binding force, and not to seek answers to questions not so decided. In this
sense, it is the dispositif of the judgment that is decisive in the first place.
However, the reasons of the Court may also have binding force if they
constitute a ‘condition essential to the Court’s decision’ being necessarily
implied in the dispositif.11

9 This definition was first used by the PCIJ and later adopted by the ICJ; see Mavrommatis
Palestine Concessions, Judgment N. 2, 1924, PCIJ Series A, No. 2, p. 11.
10 Zimmermann, op. cit. n. 3, MN 58–64.
11 Zimmermann, op. cit. n. 3 with rich case-law in footnote 167.
 Request for interpretation of a judgment 123

B. The decision of the Court

In regard to the first question, whether the parties were in dispute as to the
meaning or scope of the judgment, the Court was rather short in defining
the term ‘dispute’: ‘Obviously, one cannot treat as a dispute, in the sense of
that provision [Art. 60], the mere fact that one Party finds the judgment
obscure when the other party considers it to be perfectly clear. A dispute
requires a divergence of views; Art. 79 (2) of the Rules confirms this condi-
tion by stating that the application “shall specify the precise point or points
in dispute.”’12 The Court did not need to consider this question more in
detail; as the interpretation of the judgment was requested immediately after
the delivery of the judgment, it rightly found that ‘the very date of the
request shows that such a dispute could not possibly have arisen in any way
whatever’.13
Although the request was already inadmissible due to the non-existence of
a dispute, the Court nevertheless considered also the second prerequisite,
namely whether the alleged dispute related to the meaning or scope of the
judgment. As this was the first case where an interpretation was requested, it
was particularly important for the Court to provide some guidance to states
for further use of the interpretation procedure. In the Asylum case the
request for interpretation particularly related to the question whether Mr
Haya de la Torre had to be surrendered to Colombia. Also in this regard, the
answer of the Court was short and convincing. The Court referred ‘to what
it declared in its judgment in perfectly definite terms’, namely that ‘this ques-
tion was completely left outside the submissions of the Parties. The
Judgment in no way decided it, nor could it do so’.14 The Court concluded
that this question was a new one that could not be decided by means of inter-
pretation, because interpretation cannot exceed the limits of the judgment.
This question was the subject matter of a follow-up case brought before the
Court by Colombia in 1950.15
In this first Art. 60 case, the Court explained the prerequisites of Art. 60
as far as it could within the context of the case. In particular, it made clear
that it would be very attentive to prevent that, by the means of a request for
interpretation, a decision on questions could be obtained which were not at
stake in the underlying case.16 Parties have thus to be very cautious in formu-
lating their request for interpretation, a requirement that was of relevant
significance also in the Avena case.17

12 Request for Interpretation of the Asylum case, I.C.J. Reports 1950, p. 395 ss at p. 403.
13 Ibid.
14 Ibid.
15 Haya de la Torre case (Colombia v. Peru), Judgment, I.C.J. Reports 1951, p. 71.
16 Asylum case, op. cit. n. 1, p. 403.
17 Infra 3.2. It may be interesting to note that also in the Continental Shelf case
(Tunisia/Libya) I.C.J. Reports 1985, p. 217, the request for interpretation was dismissed
because it was aimed at replacing the demarcation line (S.O. Oda, ibid. p. 245) and in the
124 Karin Oellers-Frahm

III The Avena case

This case related to the death sentences handed down by United States
courts against several Mexican nationals who were convicted in disregard of
the obligations of the United States under Art. 36 of the Vienna Convention
on Consular Relations, namely the obligation to inform the consular repre-
sentative concerning detention and sentencing of one of its nationals. In its
judgment,18 the Court found inter alia that ‘the appropriate reparation in
this case consists in the obligation of the United States of America to
provide, by means of its own choosing, review and reconsideration of the
convictions and sentences of the Mexican nationals’.19 With a view to the
follow-up given to the judgment by the United States and, in particular, to
decisions from courts in Texas disregarding the ICJ judgment, Mexico was
of the opinion that a dispute existed between the two parties concerning the
meaning of the relevant passage of the judgment and requested interpreta-
tion under Art. 60.20 Mexico feared that on the basis of the Texas courts’
decisions, its nationals faced execution in the short term and applied,
together with the request for interpretation, for the indication of provisional
measures aimed primarily at ordering the United States not to execute any of
the Mexican nationals pending the procedure.

A. The decision of the Court under Art. 60

In this case, the only relevant question under Art. 60 was that of the exis-
tence of a dispute, not its relationship to the meaning or scope of the
judgment. The dispute concerned the question whether the relevant passage
of the judgment created an ‘obligation of result’ or, as the United States
understood it according to the view of Mexico, a mere ‘obligation of means’.
As the United States, however, explicitly agreed that the relevant passage of
the judgment created an obligation of result, there was, at first glance, no
dispute so that the request would have to be dismissed. Yet in this case, the
Court examined more closely than in the Asylum case what the term ‘dispute’
in Art. 60 actually means. It referred in particular to the fact that the French
version of Art. 60 uses a different term for ‘dispute’ than Art. 36 (2), namely
not the term ‘différend ’, but the term ‘contestation’. This led the Court to

Land and Maritime Boundary case (Cameroon v. Nigeria), op. cit. n. 1, the request for
interpretation was also dismissed because the questions were already clearly decided in the
judgment. Only in the Temple of Preah Vihear case, op. cit, n. 1, the Court admitted the
request and gave an interpretation of the 1962 judgment, what was however rather contro-
versial; see Oellers-Frahm, op. cit. n. 4; and Kulick, A., ‘Article 60 I.C.J. Statute,
Interpretation Proceedings, and the Competing Concepts of Res Judicata’, Leiden JL Int.l
Law 18, 2015, 73–89.
18 I.C.J. Reports 2004, p. 12 ss.
19 Ibid. Para 154 (9) of the Judgment.
20 Request for Interpretation of the Avena case, op. cit. n. 1.
 Request for interpretation of a judgment 125

conclude that this term was wider in scope and more flexible than the term
‘dispute/différend ’, requiring only the presence of ‘opposing views’ as to the
scope of the judgment. On this basis, the Court concluded that the parties
‘apparently hold different views as to the meaning and scope of that obliga-
tion of result, namely whether that understanding is shared by all United
States federal and state authorities and whether that obligation falls upon
those authorities’.21 The Court accordingly admitted the request for inter-
pretation,22 a decision that was highly controversial and not shared by five
judges of the Court who explained their view in their dissenting opinions.23
Their argument relied on the fact that the party to the dispute is the United
States and it is the United States Executive that represents the state at the
international level. Therefore, the position taken by the authorities of a state
of the United States is of no relevance with regard to the obligations of the
parties to the case, namely the United States and Mexico that, in fact, were
in complete agreement with regard to the obligation flowing from the judg-
ment. The dissenters rightly argued that the attitude of component organs
or state authorities of the United States could only become relevant under
the aspect of state responsibility should the judgment of 2004 not be
complied with, irrespective of whether this would be imputable to acts of
federal or state authorities. This argument had indeed also been advanced by
the Court itself so that its decision on the existence of a dispute/contesta-
tion seems rather critical.
Accordingly, it may be assumed that the admission of the interpretation
request has to be seen against the background that otherwise provisional
measures could not be indicated, and that the Court considered the provi-
sional protection necessary with a view to the imminent execution of the
persons concerned.24

21 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena
and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States
of America), Provisional Measures, Order of 16 July 2008, I.C.J. Reports 2008, p. 311, para.
55.
22 Ibid., p. 311 ss.
23 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena
and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States
of America), Provisional Measures, Order of 16 July 2008, Dissenting opinion of Judge
Buergenthal, joint dissenting opinion of Judges Owada, Tomka and Keith; dissenting opin-
ion of Judge Skotnikov.
24 For comments see Charnovitz, S., ‘Correcting America’s continuing failure to comply with
the Avena Judgment’, AJIL 106, 2012, 572–81; Tranchant, B., ‘L’arrêt rendu par la CIJ
sur la demande en interprétation de l’arrêt Avena’, AFDI 55.2009, 2010, 191–220;
Arrocha Olabuenaga, Pablo, ‘Case Medellin vs. Texas: comentarios al fallo de la Suprema
Corte de los Estados Unidos asì come a la solicitud de interpretación del fallo Avena del
31 de marzo de 2004, presentada a la Corte internacional de Justicia por México en junio
de 2008’, Anuario mexicano de derecho internacional 9, 2009, 677–705; Requena
Casanova, M., ‘De nuevo el asunto Avena ante la CIJ’, Anuario español de derecho inter-
nacional 25, 2009, 263–95.
126 Karin Oellers-Frahm

B. The decision of the Court under Art. 41 of the Statute

According to Art. 41 ICJ Statute, the Court has the power ‘to indicate, if it
considers that circumstances so require, any provisional measures which
ought to be taken to preserve the respective rights of either party’. These
circumstances require in the first place the existence of at least prima facie
jurisdiction – a condition that in interpretation proceedings is not problem-
atic. Further conditions are urgency, imminent irreparable harm, plausibility
of the asserted rights and a link between those rights and the measures
requested.25
In the present case the existence of these conditions was not controversial
as the fear of Mexico that one of its nationals would be executed was plausi-
ble – and, in fact proved well-founded as the execution took place on 5
August 2008. The Court indicated provisional measures, namely that no
Mexican national shall be executed unless review and reconsideration of the
sentence has been granted. This order repeated literally what had been
decided with binding force in the original judgment of 2004. Contrary to
the 2004 judgment, which is binding upon the United States without any
time limit, the order granting interim protection is binding only until the
judgment on the merits is delivered. It expired in fact when, by judgment of
19 January 2009,26 the Court found that the request for interpretation had
to be dismissed because it related to a matter which had not been decided in
the Judgment of 2004: in the original case the Court was not asked to decide
– and thus did not address – the question whether the judgment created an
obligation for all United States federal and state authorities. This reasoning
seems problematic: a decision imposing concrete obligations on federal or
state authorities is not within the competence of the Court and would have
constituted an interference within the internal system of the United States’
administration. It was up to the United States Government to care for the
implementation of the judgment by its territorial components – a fact that
the Court had explicitly stressed in the LaGrand case.27 These inconsistencies
in the Court’s assessment, first on the existence of a dispute, and then on the
reasons for dismissing the request for interpretation on the merits both
support the view that the real aim of the request (and the order of the Court)

25 For a detailed analysis of this article see Oellers-Frahm, K., ‘Article 41’, in The Statute of
the International Court of Justice, A Commentary, op. cit. n. 4, p. 1027 ss.
26 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena
and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J.
Reports 2009, p. 3.
27 LaGrand (Germany v. United States of America), Provisional Measures, I.C.J. Reports 1999,
p. 9, where the Court explicitly stated ‘whereas according to the information available to
the Court, implementation of the measures indicated in the present Order falls within the
jurisdiction of the Governor of Arizona; whereas the Government of the United States is
consequently under the obligation to transmit the present Order to the said Governor;
whereas the Governor of Arizona is under the obligation to act in conformity with the
international undertakings of the United States’, ibid. p. 28.
 Request for interpretation of a judgment 127

was not the interpretation of the judgment, but an appeal to the United
States to comply with the 2004 judgment.28

C. Interpretation proceedings and provisional measures of

protection
In the context of the limited jurisdiction under Art. 60, the rights to be
protected must plausibly derive from the underlying judgment. This means
that they must have been established with the force of res judicata in the
original judgment. Although this was the first case where a request for inter-
pretation was accompanied by a request for provisional measures, the Court
failed to make any remark on whether there may be any room at all for the
use of Art. 41 in a procedure for interpretation.29 After having found that a
dispute existed, the Court proceeded immediately to the examination of the
circumstances requiring the indication of provisional measures. There is no
doubt that a request for provisional measures is not excluded in interpreta-
tion proceedings because the dispute/contestation concerning the res
iudicata of the judgment – in exceptional cases – may cause irreparable harm
to the (newly interpreted) right at stake. However, the Court is required to
be extremely attentive to keep within the framework of Art. 60. In the Avena
case, the Court found that the rights that Mexico sought to protect had a
sufficient connection with the request for interpretation, namely the mean-
ing of para 153 (9) of the judgment.30 Although this is true, it has to be
stated that what Mexico aimed at, and what the Court finally did, was noth-
ing else than to reconfirm the obligations of the United States stated clearly
in the original judgment. This judgment keeps its binding force so that the
United States would be in breach of its international obligations should one
of the Mexican nationals concerned be executed without the provision of
review and reconsideration of its sentence.31 The provisional measures
requested by Mexico could not have – and were not aimed to have – any
other effect than to re-confirm the obligation of the United States resulting
from the judgment without adding anything new to that obligation.
This situation recalls the one in the Bosnian Genocide case, where Bosnia-
Herzegovina, after a first request for provisional measures, which was
granted on 8 April 1993,32 only some time later brought a further request for

28 Infra 3. 3.
29 This question was raised particularly in the Temple of Preah Vihear case with regard to provi-
sional measures concerning the non-aggravation of the dispute, see Dissenting Opinion of
Judge Donoghue, para 10, op. cit. n. 1 and Oellers-Frahm, op. cit n. 4, p.75 ss.
30 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena
and Other Mexican Nationals, op. cit. n. 23, p. 328, para 64.
31 Ibid., p. 334, paras 4–6.
32 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of 8 April 1993, I.C.J.
Reports 1993, p. 3 ss.
128 Karin Oellers-Frahm

provisional measures. In that case, the Court found that the ‘perilous situa-
tion demands, not an indication of provisional measures additional to those
indicated by the Court’s Order of 8 April 1993 … but immediate and effec-
tive implementation of those measures’.33 In the Avena case the factual
situation was similar; however, the procedural situation was different. The
Court could only examine the question of provisional measures after having
admitted the request for interpretation, at least on a prima facie basis. In a
case where the execution of persons is at stake in breach of a binding judg-
ment of the Court, it is comprehensible that the Court would not miss the
opportunity to remind the United States of its international obligations what
may be seen as a reaction to the poor means available to ensure implemen-
tation of its judgments.34
Furthermore, contrary to a judgment that marks the end of the involve-
ment of the Court,35 the situation is different in the case of provisional
measures where the Court remains seized of the matter. This follows from its
power to revise the measures or indicate new ones whenever circumstances
so require. As provisional measures have binding force until the judgment on
the merits is delivered,36 implementation of provisional measures enjoys thus
a better, although still limited supervision by the Court when compared to
final judgments. This situation seems rather odd and may explain why not
only parties, but also the Court, tend to use any possibility to urge the state
concerned to comply with the judgment. To this end, a request for interpre-
tation combined with a request for the indication of provisional measures is
in fact a promising means because the most delicate problem in interim
protection proceedings, the question of jurisdiction, does not even arise. The
relevant question concerns the risk of irreparable and imminent damage to
the rights at stake that must be linked, in interpretation proceedings, to the
terms to be construed. As the Avena case demonstrates, the Court, as an
organ of the United Nations charged with the peaceful settlement of
disputes, would be in a dilemma when passing in silence the imminent execu-
tion of human beings in disregard of a judgment. Therefore, the ‘activism’
of the Court in granting provisional protection in such cases constitutes a

33 Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 349, para 59.
34 Oellers-Frahm, K., ‘Enforcement of the International Court of Justice Decisions’, infra
Chapter 12.
35 Ibid. The Court is not concerned with the implementation of the judgment; in difference
to i.e. the European Court of Human Rights (ECHR) where the Committee of Ministers
supervises execution (Art. 46 ECHR), there is even no institutionalised supervision mech-
anism since the competence of the SC under Art. 94 (2) depends on a request of the party
and is only of limited effect.
36 After long-lasting controversial opinions on the binding force of provisional measures, the
Court finally decided in the LaGrand case (LaGrand (Germany v. United States of
America), I.C.J. Reports 2001, p. 466) that provisional measures have binding force (I.C.J.
Reports 2001, p. 503, para 102). For details see Oellers-Frahm, K., ‘Article 41’, op. cit. n.
25 with bibliographical references.
 Request for interpretation of a judgment 129

sort of remedy for the lack of supervising mechanisms relating to the imple-
mentation of a judgment. The question is therefore whether the same end
could be reached without stretching the prerequisites for an only prima facie
admission of a request for interpretation in order to reach the stage of the
request for provisional measures.

IV Use of interpretation procedures for lack of other

means of supervision
The Court, as the principal judicial organ of the United Nations, cannot
remain silent in a situation such as the one in the Avena case, but it could be
more cautious in order not to overstretch the limits of its jurisdiction. If a
request for interpretation is inadmissible, the Court could nevertheless
include in the reasons or even in the operative part of the order dismissing
the request a passage reminding the parties of the obligations resulting from
the judgment. Such attitude would be fully in accordance with the Court’s
powers and would not constitute an interference with sovereign rights of the
parties because it only repeats what has been decided with binding force.
The Avena case has thus opened a way at least to involve the Court for
reminding the parties of their obligations when compliance with a judgment
is lacking. Although the interpretation procedure was certainly not instituted
for that aim, Mexico’s use of this instrument did not amount to a misuse or
abuse, but constituted only an unusual way to conduce this procedure. As
Mexico’s tactics in the Avena case were successful, it was immediately and
successfully used as a model to get the Court involved in a dispute that other-
wise would have encountered difficulties in reaching the Court.37
As international law is lacking means of enforcing not only judgments but
also obligations in general, the implementation of international obligations is
indeed largely dependent on the good will of the state concerned so that
reminders or other soft means may be even more efficient than ‘harder’
means, which are, in fact, a very rare exception in international law.

Bibliography
Arrocha Olanbuenaga, P., Case Medellin vs. Texas: comentarios al fallo de la Suprema
Corte de los Estados Unidos asì come a la solicitud de interpretación del fallo

37 Request for Interpretation of the Judgment of 1962 in the Temple of Preah Vihear Case (op.
cit. n. 1). In this case the Court indicated far-reaching provisional measures that met well-
founded critics by five judges of the Court, cf. supra n. 17 and K. Shulman, ‘The case
concerning the Temple of Preah Vihear (Cambodia v. Thailand). The I.C.J. Orders sweep-
ing provisional measures to prevent armed conflict at the expense of sovereignty’, Tulane
Journal of International and Comparative Law 20, 2012, pp. 555–70; Tanaka, Y., ‘A new
phase of the Temple of Preah Vihear dispute before the I.C.J.’, Chinese Jl of Int’l Law 11,
2012, 191–226.
130 Karin Oellers-Frahm

Avena del 31 de marzo 2004, Anuario mexicano de derecho internacional 25

(2009), 677–705.
Charnowitz, S., Correcting America’s continuing failure to comply with the Avena
Judgment, AJIL 106 (2012), 572–81.
Kulick, A., Article 60 ICJ Statute, interpretation proceedings, and the competing
concepts of Res Judicata, Leiden JIL 18 (2015), 73–89.
Oellers-Frahm, K., The part of the International Court of Justice in solving disputes
between American States, L’Observateur des Nations Unies 24 (2008), 7–35.
Oellers-Frahm, K., Provisional measures in interpretation proceedings – a new way to
extend the Court’s jurisdiction?, in: Elias, O. and Jalloh, C. (eds.), Shielding
Humanity, Brill 2015, 61–84.
Requena Casanova, M., De nuevo el asunto Avena ante la CIJ, Anuario español de
derecho internacional 25 (2009), 263–95.
Shulman, K., The case concerning the Temple of Preah Vihear (Cambodia v.
Thailand), Tulane Jl Int. and Comp. Law 20 (2012), 555–70.
Tanaka, Y., A new phase of the Temple of Preah Vihear dispute before the ICJ,
Chinese Jl Int’l Law 11 (2012), 191–226.
Tranchant, B., L’arrêt rendu par la CIJ sur la demande en interprétation de l’arrêt
Avena, AFDI 55 (2009), 191–220.
Zimmermann, A., Tomuschat, C., Oellers-Frahm, K., and Tams, C., (eds.), The
Statute of the International Court of Justice – A Commentary, 2nd ed. 2012, OUP.
12 Enforcement of the
International Court
of Justice decisions
Karin Oellers-Frahm

I Introduction
In accordance with Art. 94 (1) of the UN Charter (UNC) ‘Each Member of
the United Nations undertakes to comply with the decision of the
International Court of Justice [ICJ] in any case to which it is a party’.1
Should all states parties to cases before the ICJ be law-abiding, there would
be no room for questions of enforcement. However, the authors of the UNC
were well aware of the fact that states – like individuals – do not always act
as they should and therefore also included a provision for the case in which
a state failed to comply with a decision of the Court. Art. 94 (2) UNC
provides that ‘if any party to a case fails to perform the obligation incumbent
upon it under a judgment rendered by the Court, the other party may have
recourse to the Security Council, which may, if it deems necessary, make
recommendations or decide upon measures to be taken to give effect to the
judgment’.
Under the League of Nations, compliance with court decisions, not only
just those of the Permanent Court of International Justice (PCIJ) but also
arbitral awards, was entrusted to the Council that ‘in the event of any failure
to carry out such an award or decision … shall propose what steps should be
taken to give effect thereto’.2 In contrast to Art. 94 (2) UNC, the Council
could act on its own initiative, while under the Charter the Security Council
(SC) takes action only upon recourse of the party that derives a title against
the other party from the judgment. Other members or organs of the UN
cannot request action under Art. 94 (2), but if in their view the situation
resulting from the non-compliance of a judgment could lead to ‘interna-
tional friction or give rise to a dispute’ (Art. 34 UNC), they may address the
SC under Chapter VI or, as the case may be, Chapter VII of the Charter.
Against this backdrop it becomes evident that Art. 94 (2) UNC constitutes

1 For a detailed analysis of Art. 94 see Oellers-Frahm, K., ‘Article 94’, in Simma, Bruno et
al. (eds), The Charter of the United Nations, A Commentary, 3rd ed., Oxford: OUP, 2012,
p. 1957 ff.
2 Art. 13 (4) of the Covenant; cf. Vité, S., ‘Article 13’, in Kolb, R. (ed.), Commentaire sur
le Pacte de la Société des Nations, Bruxelles: Bruylant, 2015, 571 et seq.
132 Karin Oellers-Frahm

a special basis for seizing the SC, namely one that does not presuppose that
the non-compliance with the judgment is – already – endangering peace and
security or leading to a friction or dispute referred to in Art. 34 UNC.3
While not all judgments of the ICJ were complied with properly,4 recourse
to Art. 94 (2) UNC was taken only once,5 in the Nicaragua case,6 which
exposed the shortcomings and ambiguities inherent in this provision, which
certainly has been one of the reasons for the paucity of use of the provision.7

II The Nicaragua case

This case originated from the activities of the Contras, opponents of the
Nicaraguan Sandinista Government, who initiated a guerilla insurgency
campaign operating from bases within neighboring states and being funded
and assisted both covertly and overtly by the US.
On 9 April 1984, Nicaragua instituted proceedings before the ICJ against
the US claiming that the US support for the Contras constituted an unlaw-
ful use of force against Nicaragua and an unlawful intervention in her
internal affairs. As El Salvador, Honduras and Costa Rica claimed that
Nicaraguan forces had engaged in military activities and assisted rebels inside
their territory, the US argued to have acted in collective self-defense.
The US was in a difficult situation because support for the Contras was a
matter of public knowledge and as it seemed difficult to justify its stance as
collective self-defense, they were keen that the case did not progress to the
merits stage. However, their strategy to deny or at least amend ad hoc the
Court’s jurisdiction failed8 when by its judgment of 26 November 1984 the

3 Cf. Oellers-Frahm K., ‘Article 94’, op. cit. n.1, p. 1966 MN 18.
4 Cf. Paulson, C., ‘Compliance with Final Judgments of the International Court of Justice
since 1987’, AJIL 98, 2004, 434 et seq.; Llamzon, A., ‘Jurisdiction and Compliance in
Recent Decisions of the International Court of Justice’, EJIL 18, 2007, 815–52; Azar, A.,
L’exécution des decisions de la Cour internationale de Justice, Bruxelles: Bruylant, 2003;
Schulte, C., Compliance with Decisions of the International Court of Justice, Oxford: OUP,
2004.
5 It has, however, to be noted that also in the case Land, Island and Maritime Frontier
Dispute (El Salvador v. Honduras; Nicaragua Intervening), I.C.J. Reports 1992, p. 351 a
formal accusation of non-compliance under Art. 94 (2) UNC was made in 2002 (UN Doc.
No. S/2002/108). In its response to the SC of October 2002, El Salvador claimed that it
had repeatedly declared its intention to request revision of the ICJ judgment and that the
dispute over compliance was thus non-existent (UN Doc. S/2002/1102). El Salvador
filed, one day short of the 10-year limit for revision, a request for revision to the ICJ, so
that action of the SC was not necessary. After rejection of the application for revision, both
states finally reached an agreement and began to demarcate the areas.
6 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States), I.C.J. Reports 1986, 14.
7 Llamzon, op. cit. n.4, 847.
8 Gill, T. G., Litigation Strategy at the World Court, Leiden/Boston: Martinus Nijhoff,
1989, pp. 135–40; see also Letter of the United States of 13 April 1984 to the ICJ
Registrar, I.C.J. Pleadings, Military and Paramilitary Activities, Vol. V, 359–60. See
 Enforcement of decisions 133

Court decided in favor of its jurisdiction and dismissed all preliminary objec-
tions or declared that they did not possess an exclusively preliminary
character. As a consequence of this judgment the US decided to abstain from
participating in the proceedings (and not to accept the final judgment) and
withdrew its declaration under Art. 36 (2) of the Statute. Without delving
further into details of the proceedings9 it is sufficient in the present context
to recall that in its judgment on the merits of June 1986 the Court found
that the US, by supporting the Contras in Nicaragua had violated its inter-
national legal obligations not to intervene in the affairs of another state and
not to use force against another state. These acts could not be justified,
according to the Court’s findings, as acts of collective self-defense because
the support of the rebels in El Salvador by Nicaragua did not amount to an
armed attack in the sense of Art. 51 UNC – reflecting customary law10 – and
that in any case the use of force as well as the level of intervention by the US
was disproportionate and thus unlawful. Furthermore, the Court found that
the US was required to make reparation to Nicaragua, the form and amount
of which would be settled by the Court failing an agreement between the
parties.

III The post-judgment developments

This judgment constituted a landmark in international law: for the first time
a small state in a politically weak position for reaching a negotiated solution
to the dispute gained traction before the ICJ against the most powerful state
of the world, which was found to be responsible for grave violations of inter-
national law. The judgment proved to be, however, only one, although a
highly pertinent step in the ‘settlement’ of the dispute, because the dispute
would only be settled when the violations of international law were

further the Shultz letter by which the United States tried to amend their declaration of
acceptance of the ICJ’s jurisdiction under Art. 36 (2) of the Statute in the sense that
disputes with Central American States are excepted from the Court’s jurisdiction (I.C.J.
Reports, 1984, p. 398. Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 1984, p. 392).
9 Crawford, J. R., ‘Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America)’, in MPEPIL. Available at http://opil.ouplaw.com/ view/
10.1093/law:epil/9780199231690/law-9780199231690-e170?rskey=mJSUdR&result=
1&prd=OPIL (access date January 2016), with bibliographical indications; and Schulte,
op. cit. n.4, pp. 184–211.
10 Due to a reservation in the declaration of the US under the optional clause the Court had
no jurisdiction to decide disputes arising under a multilateral treaty unless all parties to the
treaty affected by the decision are also parties to the case before the Court (so-called
Vandenberg reservation), so that the Court, in deciding the merits, could not apply the UN
Charter that, in Art. 2 and Art. 51, regulates questions of use of force and self-defense, but
had to rely on customary law that, in this respect, does not differ in substance from the
Charter provisions.
134 Karin Oellers-Frahm

terminated and a reparation agreement reached. As the US had declared

already in 1984, after the judgment on admissibility and jurisdiction was
delivered, that they would ‘not accept’ the judgment – although, this again,
constituted a violation of international law – and as Nicaragua had no means
to reach implementation of the judgment by negotiation or other bilateral
means, the only possible alternative was recourse to Art. 94 (2) UNC.
Immediately after the delivery of the judgment, Nicaragua requested the
SC to prevent the US Congress from according again US$100 million to the
Contras. This step, however, was taken under Chapter VI, not under Art. 94
(2) UNC, which was used only some time later when President Ronald
Reagan, in October 1986, ratified the Act of support for the Contras.11 On
28 October 1986, five non-aligned states: Congo, Ghana, Madagascar,
Trinidad and Tobago and the United Arab Emirates, presented the text of a
resolution that only ‘called for full and immediate compliance with the judg-
ment … in conformity with the relevant provisions of the Charter’ and
‘requests the Secretary-General to keep the Council informed on the imple-
mentation of this resolution’.12 Only one state voted against the resolution,
not surprisingly the US, the state concerned and a veto-power, while eleven
countries voted in favor, with three abstaining.13
It thereby became clear that Nicaragua would not garner support from the
SC for enforcing the judgment. Indeed, if a resolution in such general terms
as the one presented was vetoed by the US, any resolution providing for
concrete means of implementation would share the same fate. Nicaragua,
therefore, turned to the General Assembly (GA), which adopted several reso-
lutions urging the US ‘to abide by its obligations resulting from the UNC’.14
However, the action of the GA proved unpromising as, opposed to the SC,
it lacks the power to take binding decisions.
Although the US did, at a later time, comply with the judgment in an
‘indirect’ manner,15 the experience made by Nicaragua shows that the
enforcement of a judgment against a veto-power (or another state closely
related to a veto-power) would not work, because – strangely enough – the
state against which implementation means are requested participates in the
voting. The problem of the voting system in the SC was not addressed in the

11 Cf. Gill, op. cit. n.8, p. 285 ff.

12 SR Doc. S/18428 of 28 October 1986.
13 The affirmative votes came from Australia, Bulgaria, China, Congo, Denmark, Ghana,
Madagascar, Trinidad and Tobago, USSR, United Arab Emirates and Venezuela; absten-
tions came from France, Thailand and the United Kingdom, S/PV.2704.
14 GA Res A/RES/41/31 of 3 November 1986, which was identical to the resolution
presented to the Security Council; A/RES/42/18 of 12 November 1087 and
A/RES/44/217 of 22 December 1989.
15 The US adopted finally a comprehensive program of economic assistance for Nicaragua,
which induced Nicaragua to withdraw its claim brought before the ICJ requesting the
determination of the amount of compensation owed to Nicaragua, I.C.J. Reports 1991,
p. 47 ff.
 Enforcement of decisions 135

Nicaragua case, what does not mean that the procedure followed in that case
was uncontroversial. As no further recourse was ever made to the SC under
Art. 94 (2) UNC,16 the following considerations are still, even thirty years
after the Nicaraguan experience, of theoretical character.17

IV The voting procedure in the Security Council

Art. 27 UNC concerning the voting procedure in the SC makes a distinction
between decisions on procedural matters, which ‘shall be made by an affir-
mative vote of nine members’ (Art. 27 (2)), and those referred to in Art. 27
(3) UNC: ‘Decisions … on all other matters shall be made by an affirmative
vote of nine members including the concurring votes of the permanent
members; provided that, in decisions under Chapter VI, and under para-
graph 3 of Article 52, a party to the dispute shall abstain from voting.’

A. Procedural matters and other matters

The Charter as well as the Rules of Procedure of the SC lack details concern-
ing the distinction between procedural and other matters, although Arts 28
to 32 UNC address procedural questions. However, these articles fail to
provide an exhaustive enumeration of what procedural matters are. In a case
where the SC acts under Art. 94 (2) UNC – and that being the only aspect
of Art. 27 UNC which is relevant here18 – the decisive question is whether
such action is considered as (i) a ‘procedural matter’, thereby not requiring
the affirmative vote of the five permanent members; or as (ii) ‘another
matter’, thus requiring the consent of all permanent members, with the
exception that the party concerned is prevented from voting when the matter
relates to Chapter VI of the Charter. Chapter VI concerns the pacific settle-
ment of disputes, which allows for action of the SC in the form of
recommendations, excluding binding decisions that are admissible only in
situations covered by Chapter VII. In order to exclude a permanent member
against which compliance with a judgment is sought from voting (and veto-
ing) a resolution in the SC, it would therefore be helpful to consider action
of the SC in the framework of Art. 94 (2) UNC as a procedural matter, or
as action under Chapter VI, unless the SC explicitly declares that it is acting
under Chapter VII.

16 See, however, the attempt made by Honduras in the Land, Island and Maritime Frontier
Dispute (El Salvador v. Honduras: Nicaragua Intervening), I.C.J. Reports 1992, p. 351,
supra n.5.
17 Oellers-Frahm, K., ‘Souveräne Gleichheit der Staaten in der internationalen gerichtlichen
Streitbeilegung? Überlegungen zu Art. 94 Abs. 2 und Art. 27 UN-Charta’, in Frowein J.
A., Scharioth K., Winkelmann I., and Wolfrum R. (eds), Verhandeln für den Frieden: Liber
Amicorum Tono Eitel, Heidelberg: Springer, 2003, pp. 169, 178 ss.
18 For a general analysis of Art. 27 see Zimmermann, A., ‘Article 27’, in B. Simma, op. cit.
n.1, vol. I, 871 ss., MN 76 ss.
136 Karin Oellers-Frahm

The Statute of the ICJ contains procedural rules on the voting within the
SC only in relation to the election of judges, Art. 10(2) Statute, so that guid-
ance has been sought in General Assembly Resolution 267 (III) of 14 April
1949, which contains a list of matters to be considered as procedural, includ-
ing ‘decisions to remind members of their obligations under the Charter’.19
Whether this rather vague formulation might prove helpful in cases of Art.
94 (2) UNC, which requires more than a mere reminder of the obligations
under the Charter, remains rather problematic. The question whether the
General Assembly has at all the power to regulate items concerning the
voting procedure in the SC is equally problematic. The SC has adopted its
own Rules on Procedure20 that, with regard to the question at hand, are,
however, silent.

B. The double veto

Most authors who tackle the question of voting in the framework of Art. 94
(2) UNC, do not consider decision-making under Art. 94 (2) UNC as a
‘procedural matter’,21 although expressing concern with regard to the use of
the veto power.22 As the question is not uncontroversial, the SC would, in a
concrete case, have to decide as a first step whether it is concerned with a
procedural matter or not. This question clearly is no procedural matter so
that Art. 27 (3) UNC would be applicable admitting the veto of a perma-
nent member that, already at this point, could and certainly would prevent
the adoption of a resolution qualifying the matter as procedural with the
consequence that a decision on the substance would be governed by Art. 27
(3) UNC allowing again the use of the veto.

C. The Chapter VI exception

The situation would be different only should the second part of Art. 27 (3)
UNC apply, which provides for the abstention from voting by a state ‘party
to the dispute’. In the Nicaragua case, the Office of Legal Affairs of the UN,
while preparing the relevant meeting of the SC, drew the attention not only
to the so-called double veto that would be applicable if the question should
arise, but also to the ‘abstention clause’ in the following terms:

19 Tanzi A., ‘Problems of Enforcement of Decisions of the International Court of Justice and
the Law of the United Nations’, EJIL 6, 1995, 539 ss, 551.
20 UN Doc. S/96.
21 Vulcan, C., ‘L’exécution des décisions de la Cour internationale de Justice d‘après la
Charte des Nations Unies’, RGDIP, 1947, 201; Kelsen, H., ‘Settlement of Disputes by the
Security Council’, The Int.l Law Quarterly 1948, 211; Azar, A., L’exécution des décisions de
la Cour internationale de Justice, Bruxelles: Bruylant, 2003; Kamto, M., ‘Considérations
actuelles sur l’inexécution des décisions de la Cour internationale de Justice’, in Ndiaye, T.
M., and Wolfrum, R. (eds), Liber Amicorum Judge Thomas A. Mensah, Leiden/Boston:
Nijhoff 1992, 301.
22 Oellers-Frahm, K., ‘Article 94’, op. cit. n.1, MN 26.
 Enforcement of decisions 137

If the matter is brought before the SC under Article 94, it could be

argued that the issue of giving effect to the judgment of the Court is not
in itself a dispute, and that therefore no question of the application of
Art. 27, paragraph 3, arises. Article 94 is considered by several jurists as
providing the SC with powers and responsibilities independent of those
envisaged in Chapter VI, thus reinforcing an argument that Article 27,
paragraph 3, has no application when the Council is considering a matter
under Article 94, paragraph 2. Thus no member of the Council would
be debarred from voting, even though it is a party in the case which has
been adjudicated by the Court.23

This opinion has manifestly been followed by the SC and also by numerous
legal scholars.24 The SC was certainly right in qualifying – although inciden-
tally – a procedure under Art. 94 (2) UNC not as a ‘procedural matter’.
Whether this implies the inapplicability of the Chapter VI exception seems
more problematic and depends on the relationship between Art. 94 (2)
UNC and the rest of the Charter.

V Systemic interpretation of Article 94 (2) UNC

A. Historical background of Art. 94 (2) UNC

As opposed to Art. 13 (4) of the Covenant of the League of Nations,25 Art.
94 (2) is limited to the implementation of judgments of the ICJ. Access to
the SC should be open even if international peace and security are not – yet
– endangered.26 This interpretation follows not only from the text of the
Charter, but also from the reports of the San Francisco Conference.27 The
particularity of Art. 94 (2) UNC concerns the fact that it is of a preventive
character, i.e. that the SC can be addressed although international peace and
security are not endangered, but might be endangered at any moment by the
creditor of the judgment seeking enforcement. This view reflects Art. 13 (4)
of the Covenant, the provision that inspired Art. 94 (2) UNC, which explic-
itly provided that members of the League of Nations ‘will not resort to war
against a Member of the League that complies’ with the judgment, creating
reciprocal obligations.28 However, this does not mean that Art. 94 (2) UNC

23 UNJYB 1986, 283. See in this context Rosenne, S., The Law and Practice of the
International Court of Justice 1920–2005, 4th ed., Leiden/Boston: Nijhoff, 2006, vol. I,
p. 246 ss.
24 Schulte, op. cit. n.4, p. 55 with bibliographical references in footnote 176.
25 Vité, S., ‘Article 13’, in Kolb, R. (ed.), op. cit. n.2, p. 571 ff, 582.
26 Tunçel, E., L’exécution des décisions de la Cour internationale de Justice selon la Charte des
Nations Unies, Messeiller, 1960, p. 72.
27 Schachter, ‘The Enforcement of International Judicial and Arbitral Awards’, AJIL
54,1960, 1 ss., at p. 19.
28 For more details see Vité, S., ‘Article 13’, op. cit. n.2, p. 582.
138 Karin Oellers-Frahm

provides a special competence for the SC that is completely independent

from its other competences,29 or that it confers a special competence to apply
Chapter VII.30 This article only offers a particular way to set in motion the
exercise by the SC of its usual competences under the other Charter provi-
sions. In the words of Rosenne, Art. 94 (2) UNC has to be considered as a
‘particularization of powers’ in contrast to ‘complementary powers’31 in the
sense that it provides a particular basis for the access to, not the powers of,
the SC.32 Compliance with a judgment is considered as a political matter
rather than a legal one;33 it is entrusted to the SC as part of its function to
maintain international peace and security.

B. Relationship between Chapter VI and Art. 94(2) UNC

Art. 94 (2) UNC is not the only means of recourse to the SC for reaching
the implementation of a judgment. The creditor of the judgment could also
proceed under Chapter VI, which relates to disputes ‘the continuance of
which is likely to endanger the maintenance of international peace and secu-
rity’ (Art. 33 UNC) or ‘which might lead to international friction’ (Art. 34
UNC). This situation is always present if a judgment of the ICJ is not
complied with,34 because as long as the judgment is not implemented the
underlying dispute is not settled and the SC retains the competence –
notwithstanding the judgment of the ICJ – to deal with it.35 The requirement
for action of the SC under Chapter VI, namely the danger for international
peace and security, is no serious obstacle as it ‘would evidently be a direct
incentive for that state to claim that it may be compelled to resort to force
or other acts endangering international peace – a consequence that was
almost surely not intended and which cannot be considered desirable’.36 This
scenario might be preferred by a state with regard to the voting procedure,
namely the obligation incumbent upon the state party to the dispute to
abstain from voting when the SC acts under Chapter VI, but not when it acts
under Art. 94 (2) UNC. This situation reveals the inconsistency of inter-
preting Art. 94(2) UNC isolated from the rest of the Charter and seems
hardly compatible with a provision explicitly concerning peaceful compliance
with a judgment and which in a narrow and formal understanding would
leave only little, if any room at all, for the application of Art. 94(2) UNC.37

29 Oellers-Frahm, op. cit. n.17, p. 184.

30 Proposals in this sense have explicitly been dismissed in the San Francisco Conference, see
Tanzi, op. cit. n.19, p. 555.
31 Rosenne, op. cit. n.23, p. 245.
32 Schachter, op. cit. note 27, p. 19 ss.
33 Llamzon, op. cit. note 4, p. 847.
34 Zimmermann, A., ‘Article 27’, op. cit. n.18, p. 921, MN 216.
35 Tunçel, op. cit. note 26, p 69; Tanzi, op. cit. note 19, 572; Schachter, op. cit. n.27, p. 21.
36 Schachter, op. cit. note 27, p. 20.
37 Reisman, ‘Enforcement of International Judgments’, AJIL 63,1969, 1, 14–15.
 Enforcement of decisions 139

What proves decisive in cases where compliance with a judgment is at

stake is the type of action, action under Chapter VI or Chapter VII irrespec-
tive of the basis of seizing the SC, Art. 94 (2) UNC or another basis.38 In any
case, the SC cannot touch upon the judgment, which is res judicata and
unimpeachable for the SC, for the rest the SC is free to decide on the means
of action.

C. The role of the Security Council under Art. 94 (2) UNC

This understanding of Art. 94 (2) UNC is further supported by the fact that
under Art. 94 (2) UNC the SC ‘may, if it deems necessary’ (emphasis added)
take action. It does not function as a subsidiary organ of the ICJ, but exer-
cises its functions as one of the principal organs of the UN independently
from other organs, in this case the ICJ. The fact that also in cases of Art. 94
(2) UNC the SC is acting in complete independence means that its action is
governed by the question of whether the non-implementation of the judg-
ment may endanger international peace and security. The action of the SC
must be aimed ‘to give effect to the judgment’,39 a wording that is larger than
the term ‘implementation of the judgment’. The SC thus freely assesses the
situation resulting from the non-implementation of the judgment. In doing
so, the judgment is an essential, but not the sole factor to be taken into
account, because the SC addresses the question on a broader basis than the
Court.40 The SC, the political organ of the UN, ‘ne prête pas son bras sécu-
lier à la justice; il tire simplement parti de l’activité parallèle du juge pour
renforcer la légitimité de ses propres mesures’.41 Hence, Art. 94 (2) UNC
cannot be compared to national provisions concerning enforcement of judg-
ments, but constitutes part of the provisions on the settlement of disputes.42
Drawing from this conclusion, it is clear that the voting procedure differs
according to whether decisions are taken under Chapter VI or Chapter VII,
thereby preventing or permitting the concerned party to vote. To make the
voting procedure in the SC dependent on the way in which the SC was
seized leading to different procedures for decisions that, by their very nature,

38 Tanzi, op. cit. note 19, p. 554.

39 The Nicaragua case is a prominent example of non-compliance with, but giving effect to
a judgment: after the failure of an agreement on compensation, Nicaragua brought the
question of compensation back to the Court. When in 1990 in Nicaragua, a US-backed
President, Violeta Chamorro, was elected, the US terminated its economic sanctions
against Nicaragua. On 12 September 1991, Nicaragua discontinued the case before the
Court on the basis of ‘agreements [with the United States] aimed at enhancing Nicaragua’s
economic, commercial and technical development to the maximum extent possible’. See
for more details Schulte, op. cit. n.4, pp. 205/206.
40 Rosenne, op. cit. note 23, p. 246.
41 Weckel, P., ‘Les suites des décisions de la Cour internationale de Justice’, AFDI 1996, 428
ff, 442.
42 Oellers-Frahm, op. cit. n.17, p. 188.
140 Karin Oellers-Frahm

are Chapter VI decisions is inconsistent with the fact that also under Art. 94
(2) UNC the SC is exercising its usual function as the political organ of the
UN. This understanding of Art. 94 (2) UNC also answers the question
whether Art. 94 (2) UNC represents a special case for the application of
Chapter VII powers,43 which it does not. Only if the prerequisites of Chapter
VII are fulfilled, binding measures including use of force can be taken also in
cases where the SC acts under Art. 94 (2) UNC. And, finally, the above
understanding of Art. 94 (2) UNC is fully in line with Art. 27 (3) UNC,
which refers to ‘decisions under Chapter VI’; this qualifies the decisions, not
the way in which the SC was seized.
In the Nicaragua case, this interpretation of Art. 94 (2) UNC would have
required that the US abstain from voting since the decision taken by the SC
was evidently a Chapter VI decision.

VI Concluding remarks
The above analysis shows that action of the SC under Art. 94 (2) UNC is, like
action under Chapter VI, of only limited extent: as the Nicaragua case
demonstrates, the resolutions that were vetoed by the US did not even
provide for concrete recommendations for complying with the judgment.
Also, the resolutions taken by the GA – which does not even have the power
to take binding decisions – were of a mere hortatory character.44 International
law is, thus, only efficient in adjudging a dispute against a permanent member
of the SC – as long as there is a basis for jurisdiction – but it is weak with
regard to enforcing a judgment against a non-complying state, in particular a
permanent member. In the case that the non-compliance with a judgment
would endanger peace and security, the situation is even worse because the
concerned party always participates in a vote under Chapter VII, so that not
even a hortatory decision could be taken should a permanent member or a
state with strong political ties to a permanent member be concerned.
But this is hardly groundbreaking news in international law where actions
against the will of a state remain the most delicate problem. This should,
however, not lead to resignation – at least in the context of the implementa-
tion of ICJ judgments – because practice shows that the compliance record
for ICJ judgments is rather positive. Also, in cases of non-compliance ‘diplo-
matic pressure’ or the possibility of recourse to the SC more often than not
lead to the desired result. The Nicaragua case is an impressive example in the
sense that questions of power are irrelevant before the Court, but that the
post-judgment phase may be burdensome and disappointing. However, in
the end, even if the judgment was not literally implemented, it was at least
‘given effect’ so that the underlying dispute was settled peacefully.

43 Ibid., p. 184. See also Tanzi, op. cit. n.19, p. 55 and Oellers-Frahm, op. cit. n.17, p. 184.
44 Schulte, op. cit. n.4, p. 204.
 Enforcement of decisions 141

Bibliography
Azar, A. L’exécution des décisions de la Cour internationale de justice, Bruxelles:
Bruylant, 2003.
Crawford, J.R. Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), MPEPIL.
Gill, T.D. Litigation Strategy at the International Court: A Case Study of the
Nicaragua v. United States Dispute, Dordrecht/Boston/London: Martinus
Nijhoff Publishers, 1989.
Kamto, M. Considérations actuelles sur l’inexécution des décisions de la Cour inter-
nationale de Justice. In: Ndiaye, T.M. and Wolfrum, R. (eds), Liber Amicorum
Judge Thomas Mensah, Martinus Nijhoff Publishers: Dordrecht/Boston/London,
1992, 215–33.
Kelsen, H. Settlement of Disputes by the Security Council, The Int’l Law Quarterly,
1948, 173–213.
Llamzon, A.P. Jurisdiction and Compliance in Recent Decisions of the International
Court of Justice, EJIL 18 (2007), 815–52.
Oellers-Frahm, K. Article 94. In: Simma, B., Khan, D.-E., Nolte, G., and Paulus, A.
(eds), The Charter of the United Nations, A Commentary, 3rd ed., Oxford: OUP,
2012, 1957–71.
Oellers-Frahm, K. Souveräne Gleichheit der Staaten in der internationalen gerichtli-
chen Streitbeilegung? Überlegungen zu Art. 94 Abs. 2 und Art. 27 UN-Charta,
Frowein, J. A., Scharioth, K., Winkelmann, I., and Wolfrum, R., (eds), Verhandeln
für den Frieden, Heidelberg: Springer, 2003, 169–91.
Paulson, C. Compliance with Final Judgments of the International Court of Justice
since 1987, AJIL 98 (2004), 434–61.
Reisman, W.M.N. Enforcement of International Judgments, AJIL 63 (1969), 1–27.
Rosenne, S. The Law and Practice of the International Court of Justice 1920–2005, 4th
ed. Martinus Nijhoff Publishers: Leiden/Boston, 2006, vol. I.
Schachter, O. The Enforcement of International Judicial and Arbitral Awards, AJIL
54 (1960), 1–24.
Schulte, C. Compliance with Decisions of the International Court of Justice, Oxford:
OUP, 2004.
Tanzi, A. Problems of Enforcement of Decisions of the International Court of Justice
and the Law of the United Nations, EJIL 6 (1995), 539–72.
Tunçel, E. L’exécution des décisions de la Cour internationale de Justice selon la Charte
des Nations Unies, Neuenburg: Messeiller, 1960.
Vité, S. Article 13. In: Kolb, R., Commentaire sur le Pacte de la Société des Nations,
Bruxelles: Bruylant, 2015, 571–86.
Vulcan, C. L’exécution des décisions de la Cour internationale de Justice d’après la
Charte des Nations Unies, RGDIP 57 (1947), 187–205.
Weckel, P. Les suites des décisions de la Cour internationale de Justice, AFDI 1996,
428–42.
Zimmermann, A. Article 27. In: Simma, B., Khan, D.-E., Nolte, G., and Paulus, A.,
(eds), The Charter of the United Nations, A Commentary, 3rd ed., Oxford: OUP,
2012, 871–938.
This page intentionally left blank
Part III
Material contribution of
Latin American cases to
the development of
international law
Diplomatic and consular protection
This page intentionally left blank
13 Vienna Convention on
Consular Relations
(Paraguay v. United States
of America), 1998
Cristina Hoss

I Introduction and factual background

On 3 April 1998, Paraguay instituted proceedings and requested the indica-
tion of provisional measures against the US before the International Court
of Justice (hereinafter ‘the ICJ’ or ‘the Court’).1 The dispute related to
alleged breaches of the Vienna Convention on Consular Relations of 19632
(hereinafter ‘the Vienna Convention’) and concerned a Paraguayan national,
Mr Angel Francisco Breard, who was sentenced to the death without being
informed of his rights under Article 36, paragraph 1 lit.b), of the Vienna
Convention.3 Two more prominent cases involving very similar matters,
LaGrand (Germany v. United States)4 and Avena (Mexico v. United States),5
were still to come before the Court. Those two cases proceeded to the merits
and therefore ‘superseded’ the Breard precedent. Nevertheless, this latter
case should not be forgotten for it opened the path for important legal find-
ings in the LaGrand and Avena cases.
When determining the influence of the short-lived Breard case, two factors
deserve particular attention: the debate surrounding the binding force of
provisional measures ordered by the ICJ and the form of reparation requested
by Paraguay, namely guarantees of non-repetition. These two issues were
present in the ‘forgotten’ case of Mr Breard, but were only addressed by the
Court in the cases LaGrand and Avena a few years later for the simple reason

1 Vienna Convention on Consular Relations (Paraguay v. United States of America),

Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998, p. 248. Also available on
the Court’s website: www.icj-cij.org (accessed 11 March 2016).
2 Vienna Convention on Consular Relations, UNTS, vol. 596, p. 487. Full text available at:
https://treaties.un.org/doc/Publication/UNTS/Volume%20596/volume-596-I-8638-
English.pdf (accessed 11 March 2016).
3 The full history of domestic court proceedings in the US is set out in the last decision of
the United States Supreme Court in that case, dated 14 April 1998: Breard v. Greene 523
US 371 (1998). Confirmed by Breard v. Commonwealth, 445 S.E.2d 670.
4 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 466.
5 Avena and Other Mexican nationals (Mexico v. United States of America), Judgment, I.C.J.
Reports 2004, p. 12.
146 Cristina Hoss

that the Breard case did not proceed to the merits. The case was removed
from the Court’s list just one month after the filing of Paraguay’s memorial,
which occurred seven months after the execution of Mr Breard.
Paraguay proceeded to file an application before the ICJ on 3 April 1998,
only days before the execution of Mr Breard, scheduled to take place on 14
April 1998. The Court held hearings on 7 April 1998 and, unanimously,
adopted an order on 9 April 1998, requesting the US to take all measures to
ensure that Mr Breard was not executed pending the final decision in the
proceedings.6 In reference to the order, the Secretary of State, Ms Madeleine
Albright, wrote a letter to the Governor of Virginia on 13 April 1998
requesting him to exercise his powers as governor and stay Mr Breard’s
execution.7 On the morning of 14 April 1998, the day scheduled for his
execution, the US Supreme Court denied the last application for stay of
execution on the basis of the ‘procedural default’ rule. This rule essentially
bars any claim brought at a late stage of criminal proceedings from being
examined unless established that prejudice was caused to the defendant.8
The Supreme Court nevertheless recalled that it was now the prerogative
of the Governor of Virginia to allow the stay of execution on the basis of the
letter from the Secretary of State.9 The Governor of Virginia, however, chose
not to exercise his power and Mr Breard was put to death by lethal injection
on 14 April 1998.10
Paraguay filed a memorial on 9 October 199811 requesting the Court to
make declarations of wrongfulness with regard to the violation of the Vienna
Convention and of the order indicating provisional measures.12
Paraguay further requested the Court to order guarantees of non-repetition
and, given that restitutio in integrum had become impossible after the execu-
tion of Mr Breard, it sought to obtain alternative reparation, namely
compensation and moral damages.13 On the same day, 9 October 1998,
Paraguay filed a document entitled ‘Conditional Request of Paraguay for an
order conclusively establishing facts’. In that document, Paraguay essentially set
out the prejudice it had allegedly suffered due to the execution of Mr Breard.14

6 I.C.J. Reports 1998, p. 258.

7 Letter of the Secretary of State to the Governor of the State of Virginia, dated 13 April
1998, available at: www.state.gov/documents/organization/65744.pdf (accessed on 11
March 2016).
8 Breard v. Greene 523 US 371 (1998).
9 Ibid. and note 7 above.
10 www.nytimes.com/1998/04/15/us/clemency-denied-paraguayan-is-executed.html
(accessed on 11 March 2016).
11 I.C.J. Pleadings, Vienna Convention on Consular Relations (Paraguay v. USA), 1998,
Memorial submitted by Paraguay on 9 October 1998, pp. 140–187.
12 Ibid., p. 185.
13 Ibid., p. 186.
14 The procedure before the Court does not provide for any such order, however, the docu-
ment was admitted to the case file I.C.J. Pleadings, Vienna Convention on Consular
Relations (Paraguay v. USA), pp. 85–88.
 Vienna Convention on Consular Relations 147

Only one month following the filing of Paraguay’s memorial, the Court
issued an order removing the case from the list at the request of Paraguay.
The Government of Paraguay had written to the Court expressing its inten-
tion to ‘discontinue the proceedings with prejudice’.15 The US agreed, and
the Court issued an order to that effect on 10 November 1998. No particu-
lar reason was given for the discontinuance of the proceedings but in the
meantime the US had made an official apology with the assurance of better
future compliance with the Vienna Convention.16
Regardless of its early demise, the Breard case arguably had a greater
impact on the Court and its jurisprudence than one would have expected
from the very brief history of the proceedings before the ICJ.
Apart from the protracted debate that this case has generated among US
scholars,17 and as far as international law is concerned, the impact is most visi-
ble in the context of the determination of the nature of provisional measures
issued by the ICJ (II) as well as in the emergence of guarantees of non-repe-
tition as remedy in the law of state responsibility (III).18

II On binding orders and ‘non-binding language’

At the time of Paraguay’s filing of the case regarding the Vienna Convention
on Consular Relations, the binding nature of provisional measures under the
Court’s Statute was still much debated.19 In fact, Paraguay’s memorial was
the first in the history of the Court to request an explicit finding on the viola-
tion of an order indicating provisional measures, and henceforth a
declaration on the binding nature of provisional measures as such.20
Different lines of argument can be identified in Paraguay’s approach, as set
out in its memorial of 9 October 1998.21 Paraguay first argued that orders of

15 The expression ‘with prejudice’ means that the State renounces the possibility of taking any
further action in the matter, I.C.J. Vienna Convention of Consular Relations (Paraguay v.
USA), Order of 10 November 1998, I.C.J. Reports 1998, p. 426 (p. 427).
16 Statement made in Asunción (Paraguay) on 1 November 1998, in: Quigley, J., Aceves, W.
J., and Shank, A., The Law of Consular Access: A documentary guide, London: Routledge,
2010, p. 139. See full text below, pp. 14–15.
17 For an extensive debate on that issue see notably: Agora Breard, American Journal of
International Law, No. 4 (1998), pp. 666–712.
18 See also Hoss, C., Satisfaction, in: MPEPIL, Oxford: OUP, 2014.
19 See in particular: Bernhardt, R. (ed.), Interim Measures Indicated by International Courts,
Berlin/Heidelberg/New York: Springer, 1994; see, in particular, Thirlway, H., The
Indication of Provisional Measures by the I.C.J., in Bernhardt, R. (ed.), Interim Measures
Indicated by International Courts, Berlin/Heidelberg/New York: Springer, 1994, p. 1 et
seq. Kolb, R., The International Court of Justice, Oxford: Hart, 2013, pp. 638–650.
Hersch Lauterpacht even suggested to amend the Court’s Statute. Lauterpacht, H., The
Development of International Law by the International Court, London, 1958, reprinted
edition published by Cambridge: CUP, 1982, pp. 112–113.
20 CR 2000/27, p. 47, par. 19 (Dupuy).
21 I.C.J. Pleadings, Vienna Convention on Consular Relations (Paraguay v. USA), Memorial
submitted by Paraguay on 9 October 1998, paras 5.15–5.51, pp. 165–176.
148 Cristina Hoss

the Court were ‘decisions’ within the meaning of Article 94, paragraph 1 of
the UN Charter in which member states of the United Nations had vowed
to comply.22 It also stated that the ordinary meaning of Article 41 of the
Statute, when read in its context, could only lead to the conclusion that
provisional measures were binding.23 Finally, the object and purpose of
Article 41 of the Statute require that provisional measures be binding.24
Paraguay referred to the rules of interpretation of the Vienna Convention on
the Law of Treaties,25 placing only little emphasis on the supplementary
means of interpretation the travaux préparatoires, since they appear not to
be clearly pointing towards the binding force of provisional measures, at least
as thus conceived by the drafters and state parties to the Statute of 1920.26
Other arguments, such as the general principle of effectiveness of judicial
orders or even arguments based on the Court’s inherent powers, could have
been submitted. However, they were not addressed by Paraguay in this
case.27
The position of the US in relation to the binding nature of provisional
measures proved to be rather nuanced at the time: In the case concerning
United States Diplomatic and Consular Staff in Tehran (United States of
America v. Iran), the Court had indicated provisional measures for the
immediate release of hostages. In its memorial, the US stated that, by disre-
garding the order of the Court, Iran had violated its international
‘obligations’.28 This would indicate that the US considered that the order of
the Court indicating provisional measures could be the source of obligations
applicable to Iran.
Fast-forwarding eighteen years, in the course of the Breard proceedings,
some elements indicate that the US still viewed orders indicating provisional
measures as binding. During the Court’s hearings held on 7 April 1998, the
US argued:

22 Ibid., paras 5.16 to 5.17.

23 Ibid., paras 5.18 to 5.39.
24 Ibid., paras 5.40 to 5.50.
25 Vienna Convention on the Law of Treaties of 23 May 1969, UNTS, vol. 1155, p. 331.
26 See Thirlway, H., The indication of provisional measures by the International Court of
Justice, in: Bernhardt R. (ed.), Interim measures indicated by International Courts, op. cit.
n. 19, p. 1 (29). The ICJ in LaGrand, however, pointed out that the travaux préparatoires
did ‘not preclude the conclusion that orders under Article 41 have binding force.’
LaGrand (Germany v. United States), I.C.J. Reports 2001, Judgment, p. 504.
27 See Kolb, R., The International Court of Justice, Oxford & Portland: Hart, 2013, pp. 643–
645.
28 ‘Iran has formally undertaken pursuant to Article 94 paragraph 1 of the Charter … to
comply with the decision of this Court in any case to which Iran might be a party … [includ-
ing] any and all Orders and Judgments which might be entered by this Court in the course
of the present litigation.’ United States Diplomatic and Consular Staff in Tehran (United
States v. Iran), Pleadings, I.C.J. Reports 1980, p. 266 (Statement of Roberts Owen)
Emphasis added. See also Memorial of the US, Pleadings, I.C.J. Reports 1980, p. 139.
 Vienna Convention on Consular Relations 149

1.6. As this Court knows, the indication of provisional measures is a seri-

ous matter which the Court is cautious in exercising. That is especially
true in the case where the Court is being asked to take action that would
severely intrude upon national criminal jurisdiction of a State in a matter
of violent crime.29

This, to any diligent reader, does not imply that the US, at the time of the
hearings, were convinced of the non-binding character of provisional meas-
ures indicated by the Court.
The plain text of the wording from the Court’s order of 9 April 1998
could also be interpreted as intending to create binding obligations, as the
operative paragraph applied the term ‘should’ (‘doivent’ in the French
version is even more robust) rather than ‘ought’, which is the language used
in Article 41 of the Statute. However, when Secretary of State Madeleine
Albright wrote to the Governor of Virginia to request that he stay the execu-
tion of Francisco Breard, she stated:

Using non-binding language, the Court said that the United States
should ‘take all measures at its disposal to ensure that Angel Francisco
Breard is not executed pending the final decision in these proceedings’.30

Clearly, Secretary of State Albright did not suggest that orders of the Court
as such were non-binding, instead, she had insisted on the ‘non-binding
language’ used by the Court.
This would indicate that initially, the US Government did not contest the
binding nature of the Court’s orders as such, but would rather dissect the
language used by the Court in a particular order. However, the State
Department when appearing before the US Supreme Court, stated that an
ICJ order should not be considered binding by the US Supreme Court.31
Once the provisional measures in both the Breard and LaGrand proceed-
ings had been breached, the US chose to argue that orders on provisional
measures were not binding all together. Referring to the text of Article 41 of
the Statute and also to the travaux préparatoires, the US held that measures
indicated under Article 41 of the Statute were intended to be non-binding.32
Contrary to its position taken in the Consular staff-case, the US argued that

29 Verbatim Record CR 98/7, p. 25 (Intervention of the US Department of State Legal

Adviser, David R. Andrews).
30 Letter of the Secretary of State to the Governor of the State of Virginia, dated 13 April
1998, available at: www.state.gov/documents/organization/65744.pdf (accessed 3
September 2015), emphasis added.
31 See Quigley, J., Aceves, W. J., and Shank, A., The Law of Consular Access: A documentary
guide, London: Routledge, 2010, p. 222; Amicus curiae brief of 14 April 1998, in: Breard
v. Greene.
32 Counter-Memorial of the United States in the LaGrand case, para. 142–152.
150 Cristina Hoss

Article 94, paragraph 1 of the UN Charter related solely to judgments of the

Court, not to its orders.33
The arguments initially applied by Paraguay in its memorial were revived
and developed by Counsel for Germany, when pleading the LaGrand case
before the Court, after the execution of the LaGrand brothers in violation of
the Court’s provisional measures.34 With regard to the binding nature of
provisional measures, Germany made extensive reference to the Breard
precedent.35 In its memorial, Germany notably pressed the point that during
the proceedings in the Breard case, the US had not argued that the Court’s
orders were non-binding.36 Germany also underlined the need for the Court
to make a finding on the binding nature of provisional measures in view of
the conduct of US authorities in the aftermath of the issuance of the Court’s
orders in Breard and in LaGrand.37
In the LaGrand proceedings it became clear that the breach of the
Court’s order was no minor setback, or an ‘incident de parcours’, but rather
that it was owed to what had become a legal position of the US on the nature
of orders on provisional measures.38 This might well have prompted the
Court to make a finding on the binding nature of orders indicated under
Article 41 of the Statute. As one commentator fittingly observed in 1998,
after the Breard proceedings, the Court now ‘needed to bite the bullet’,39
and determine that its orders on provisional measures should be respected as
a matter of law, not as a matter of courtesy.40
Arguably, the non-observance of the order in the Breard precedent might
well have contributed to the Court’s finding in the LaGrand case on the
binding nature of its orders indicating provisional measures.41

33 Counter-Memorial of the United States, para. 155–158.

34 LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March
1999, I.C.J. Reports, 1999, p. 9.
35 Mainly in its Memorial of Germany paras 4.123, 4.156, 4.163 to 4.165, 4.170 to 4.147.
36 Memorial of Germany, paras 1.463–1.465.
37 Memorial of Germany, paras 4.170–4.171. See also CR 2000/27, pp. 40–50 (Dupuy).
38 See in particular CR 2000/27, pp. 57–58 (Dupuy) and CR 2000/30, pp. 6–47 (Dupuy).
39 Highet, K., ‘The Emperor’s new clothes, death row appeals to the World Court? The
Breard case as a miscarriage of (international) justice’, in: Liber amicorum Jose Maria Ruda,
Kluwer 2000, pp. 435–456 at p. 449.
40 See, for a quick overview of later cases before US courts, Dupuy, P.-M. and Hoss C.,
‘Avena and other Mexican nationals’, in: Max Planck Encyclopedia of Public International
Law, Oxford: OUP, 2014; also available online: http://opil.ouplaw.com/home/EPIL
(accessed 11 March 2016).
41 One of the two dissenting judges, Judge Buergenthal only dissented because he considered
the late filing of Germany’s request for the indication of provisional measures to amount
to procedural misconduct. I.C.J. LaGrand, Judgment, dissenting opinion Judge
Buergenthal, I.C.J. Reports, 2000, pp. 556–557.
 Vienna Convention on Consular Relations 151

III The silent revolution: emergence of guarantees of

non-repetition
At the time the Breard case was brought before the Court, restitution was
still possible. In its application of 3 April 1998, Paraguay had therefore
requested a series of measures under the heading of ‘restoration’.42 It
requested in particular that the Court instruct the US not to apply the
doctrine of ‘procedural default’; to determine that the US was under an
international obligation to undertake any future detention of Paraguayan
nationals in conformity with its international obligation; to declare that any
criminal liability of Mr Breard imposed in violation of the international legal
obligations is void; and, to order the US to re-establish the situation that
existed prior to the detention of, proceedings against, and conviction and
sentencing of Mr Breard. Finally, Paraguay requested the US to provide a
guarantee of non-repetition of the illegal acts perpetrated.
Paraguay’s latter request appears to be rather elusive, compared with the
detailed requests for ‘restoration’, most of which are in fact very much
future-oriented rather than measures of restitution. In all likelihood,
Paraguay was contemplating measures of general assurances to be under-
taken for the violations not to occur again, as was usually sought in state
practice. Paraguay’s focus was to restore the situation and, ultimately, to
overturn the death sentence of Mr Breard. Hence, the general terms of
Paraguay’s request for guarantees of non-repetition.
Both the amended application43 and the memorial of Paraguay submitted
on the same day, on 9 October 1998, remedied this lack of precision. By that
time, ‘restoration’ had become impossible and appropriate alternative means
of reparation had to be sought. Paraguay not only requested ‘compensation’
and ‘satisfaction’ for the US’ violation of the Court’s order on provisional
measures, but also requested, separately, that measures be taken in order to
prevent further violations.
In fact, Paraguay transposed the measures initially requested as measures
of ‘restoration’ into its request for guarantees of non-repetition.44
Instead of the general assurances that would have traditionally been given
verbally, the government of Paraguay now requested the Court to declare
that the US was:

under a legal obligation to provide Paraguay a guarantee that the United

States will not repeat its illegal acts, but will carry out in conformity with
[its] international obligations any future detention of or criminal
proceedings against any Paraguayan national in its territory, whether by
a constituent, legislative, executive, judicial or other power.

42 Application of Paraguay 3 April 1998, I.C.J. Pleadings 1998, para. 25.

43 Amended Application of 9 October 1998, I.C.J. Pleadings 1998, p. 73.
44 Ibid., p. 81.
152 Cristina Hoss

In its memorial, the submission in relation to guarantees of non-repetition

was phrased in the same manner.45
This shift from one remedy (restoration) to another (guarantees of non-
repetition) was possibly the starting point of what could be called a silent
revolution of the law of state responsibility:

In 1998, state practice in the field of ‘guarantees and assurances of non-

repetition’ consisted of linking those assurances to formal apologies, i.e.
approaching these as a form of satisfaction. Apologies would be comple-
mented by verbal assurances according to which the responsible state
would commit not to violate its obligations in the future. There were no
formal requirements discernible in state practice and there was no prece-
dent in the Court’s jurisprudence to serve as a basis for a request to
order guarantees of non-repetition.46

Hence, the section on guarantees of non-repetition in the memorial of

Paraguay is remarkably brief.47 The basis of Paraguay’s request appears to be
Article 46 of the Draft Articles of the International Law Commission (ILC)
on state responsibility, in particular, at that time, the Draft from 1996
adopted in the first reading.48
Given the precision of Paraguay’s request for guarantees of non-repeti-
tion, it is somewhat surprising that it accepted as sufficient the rather general
assurances made by the State Department in November 1998. The relevant
text of the statement released by the Department of State in Asunción
(Paraguay) on 3 November 1998 reads as follows:

Recognizing that United States’ compliance with the requirements of

the Vienna Convention must improve, the Government of the United
States has undertaken efforts to better educate officials throughout the
United States of the consular notification requirements. The United
States intends through these efforts to ensure that the consular rights of
foreign nationals in the United States are respected, and that Paraguayan
and other foreign nationals in the United States are properly notified of
their right to request consular assistance if they are arrested or detained.
Consular notification is no less important to Paraguayan and other
foreign nationals in the United States than to US nationals outside the

45 See Application instituting proceedings, 3 April 1998, para. 25 (4); Amended Application
instituting proceedings, para. 45 (e) and Memorial of Paraguay para. 6.21 (e), I.C.J.
Pleadings, 1998, p. 186.
46 Palmisano, G., ‘Les garanties de non-répétition entre codification et réalisation juridiction-
nelle du droit: à propos de l’affaire LaGrand’, Revue générale de droit international public
(RGDIP), vol. 106, issue 4, 2002, pp. 753–790.
47 Memorial of Paraguay, ICJ Pleadings 1998, pp. 178–179.
48 Yearbook of the International Law Commission 1996, vol. II (2), p. 301.
 Vienna Convention on Consular Relations 153

United States. We fully appreciate that the United States must see to it
that foreign nationals in the United States receive the same treatment
that we expect for our citizens overseas.49

While the text of the official statement issued by the US in Asunción

(Paraguay) on 3 November 1998 goes beyond a simple apology, it does not
mirror the requests of Paraguay made in its memorial concerning guarantees
of non-repetition.
The statement seemed to be motivated by considerations of protection of
US citizens abroad and reciprocity, rather than constituting a proper apology.
As to the measures that the State Department vowed to take in order to
prevent future violations, they were rather limited in scope. The measures
actually taken in the aftermath of the Breard case included the dissemination
of a booklet containing information on consular rights, as well as the organ-
isation of seminars and training.50 In fact, as later established in LaGrand and
Avena, the measures envisaged by the statement proved to be inadequate to
prevent further violations of consular rights.
All in all, the statement certainly fulfilled its purpose, namely to settle the
dispute with Paraguay, but it failed to satisfy the request of Paraguay, as set
out in its memorial. The reason why Paraguay accepted these assurances and
settled the dispute remains unclear. It had already rejected similar statements
made earlier by US authorities, which it considered insufficient, such as the
apologies offered by the State Department.51
One might, however, venture out to assess the chances of Paraguay
obtaining the requested measures: Paraguay’s request for guarantees relied
on little more than a few examples taken from state practice and arbitral
awards, as set out in the ILC commentary on Article 46 of the ILC Draft
articles on state responsibility; none of the precedents was as detailed as
Paraguay’s request. Assuming that the case had gone to the merits, it is
unlikely that the Court would have granted such guarantees in the Breard
case.
To a certain extent, Germany had the easier stand requesting guarantees
of non-repetition as it relied on the Breard precedent to establish that repe-
tition had already occurred and would in all likelihood occur again. In the
factual part of its memorial, Germany consequently referred to the Breard
precedent in order to justify its request for guarantees of non-repetition and
in order to demonstrate that there was a real risk of repetition.52

49 Aceves, J. and Shank, A., The Law of Consular Access: A documentary guide, London:
Routledge, 2010, p. 139.
50 LaGrand I.C.J. Pleadings 2000, Counter-memorial of the United States, pp. 17–18.
51 1997 US Briefs 1390, Statement made by the Solicitor General before the US Supreme
Court; quoted in the Memorial of Germany, par. 6.54. and reproduced in Annex 34 to the
memorial.
52 LaGrand I.C.J., Memorial of Germany, 16 September 2000, paras 1.06–1.07 and para
3.42.
154 Cristina Hoss

It appears that Germany, when preparing the LaGrand proceedings, saw

a window of opportunity for requesting and obtaining guarantees of non-
repetition as a separate form of reparation. Similar to the request formulated
by Paraguay, the request for guarantees from Germany was substantially
more detailed than a traditional, general assurance. As did Paraguay, the
German memorial had to rely on the work of the ILC, with the sparse prece-
dents referred to therein.53
Over the course of the hearings, Counsel for Germany referred to Breard,
notably to bolster Germany’s case in convincing the Court that the measures
taken by the US in order to improve compliance with the Vienna
Convention (and arguably constituting guarantees of non-repetition but far
from those requested by Paraguay) were insufficient to preserve the rights of
foreign nationals under the Vienna Convention.54 The success of this strat-
egy can be seen in the operative paragraph of the LaGrand judgment, read
together with the declaration of President Guillaume.55
The ILC took account of these developments in its preparation of the Draft
articles on state responsibility. In its commentary to the Articles adopted in
2001, the ILC refers to the Breard case with reference to Article 31
(Satisfaction), as an example for the diplomatic practice of offering apologies as a
means of reparation for immaterial damages.56 The ILC did not see fit to add the
Breard precedent to its commentary on Article 30 (Cessation and guarantees of
non-repetition), being that the LaGrand case was the most relevant precedent.57
However, it appears that the Court has since been rather reluctant to grant
guarantees in subsequent cases. As the Court has held:

while the Court may order, as it has done in the past, a State responsi-
ble for internationally wrongful conduct to provide the injured State
with assurances and guarantees of non-repetition, it will only do so if the
circumstances so warrant, which it is for the Court to assess. As a general
rule, there is no reason to suppose that a State whose act or conduct has
been declared wrongful by the Court will repeat that act or conduct in
the future, since its good faith must be presumed.58

For the Court to grant a request for guarantees and assurances of non-repe-
tition, it almost requires a systematic, manifest breach or unlawful conduct
on the part of the responsible state.

53 LaGrand I.C.J., Memorial of Germany, paras 6.60–6.77.

54 CR 2000/26, pp. 21 et seq. (Simma); CR 2000/27, pp. 34–35 (Simma). See also the
question raised by Judge Higgins CR 2000/29, p. 57 and the written answer from
Germany (available on the Court’s website).
55 LaGrand, Judgment, I.C.J. Reports 2011, pp. 516–517.
56 ILC Report 2001, YbILC, 2001, vol II, Part Two, p. 92.
57 ILC Report 2001, YbILC, 2001, vol II, Part Two, p. 90.
58 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment,
I.C.J. Reports 2009, p. 213 (p. 267).
 Vienna Convention on Consular Relations 155

Guarantees and assurances of non-repetition remain an extraordinary

remedy. They are considered to be exceptional in as much as they require
specific justification of a real risk – not only a possibility – of repetition, and
in so far as they can be more intrusive into the sovereign domain of a state
than other forms of reparation. The concept of guarantees of non-repetition
as it now stands in the Court’s jurisprudence appears as rather remote from
the traditional form of guarantees, which consisted of complementary verbal
assurances accompanying apologies rather than a sanction for systematic
wrongful conduct.

IV Conclusion
The particular circumstances surrounding the ‘forgotten’ Breard case most
probably contributed to the findings made in the LaGrand judgment and,
hence, contributed to considerable developments in the jurisprudence of the
Court.
It is all the more deplorable that the underlying tensions between domes-
tic courts and international obligations remain ultimately unsolved, revealing
once again the pressing need for a constructive dialogue between all courts
and tribunals, domestic and international, in the best interest of the rule of
law.59

Bibliography
Agora Breard, American Journal of International Law, No. 4 (1998), pp. 666–712.
Aceves, J. and Shank, A., The Law of Consular Access: A documentary guide, London:
Routledge, 2010.
Dupuy, P.-M. and Hoss C., ‘Avena and other Mexican nationals’, in: Max Planck
Encyclopedia of Public International Law, Oxford: OUP, 2014.
Frowein, J., ‘Provisional measures by the International Court of Justice – the
LaGrand Case’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
(ZaöRV), 62, issue 1–2, 2003, pp. 55–60.
Hambro, E., ‘The binding character of the provisional measures of protection indi-
cated by the I.C.J’., in: Rechtsfragen der internationalen Organisation, Festschrift
für Hans Wehberg, Frankfurt am Main, 1956, p. 152 et seq.
Highet, K., ‘The Emperor’s new clothes, death row appeals to the World Court? The
Breard case as a miscarriage of (international) justice’, in: Liber amicorum Jose
Maria Ruda, Kluwer 2000, pp. 435–456.

59 See in particular the decision of the US Supreme Court in Medellin v. Texas 128 SCt 1346
(2008) and the proceedings before the I.C.J. Request for interpretation of the Judgment
of 31 March 2004 in the case concerning Avena and Other Mexican nationals (Mexico v.
United States of America) (Mexico v. United States of America. For an overview: Dupuy, P.-
M., Hoss, C., ‘Avena and other Mexican nationals’, Max Planck Encyclopedia of Public
International Law, Oxford: OUP, 2014.
156 Cristina Hoss

Hoss, C., Satisfaction, in: Max Planck Encyclopedia of Public International Law,
Oxford: OUP, 2014.
Kolb, R., The International Court of Justice, Oxord: Hart, 2013, p. 1222.
Lauterpacht, H., The Development of International Law by the International Court,
London Stevens & Sons Limited, 1958, reprinted edition published by
Cambridge: CUP, 1982.
Mendelssohn, M., ‘Provisional measures of protection in cases of contested jurisdic-
tion’, BYIL 46 (1972–1973), p. 259 et seq.
Oellers-Frahm, K., Die einstweilige Anordnung in der Internationalen
Gerichtsbarkeit, Berlin Heidelberg New York: Springer, 1975.
Palmisano, G., ‘Les garanties de non-répétition entre codification et réalisation juris-
dictionnelle du droit: à propos de l’affaire LaGrand’, Revue générale de droit
international public (RGDIP), vol. 106, issue 4, 2002, pp. 753–790.
Pellet, A., ‘Remarques sur la jurisprudence récente de la C.I.J. dans le domaine de la
responsabilité internationale’, in: Kohen, M., and Kolb, R., Tehindrazanarivelo D.
(eds), Perspectives of International Law in the 21st Century, Liber amicorum
Dominicé, Leiden: Nijhof, 2012, pp. 321–345 (341–342).
Thirlway, H., ‘The indication of provisional measures by the I.C.J.’, in: Bernhardt, R.
(ed.), Interim Measures Indicated by International Courts, Berlin/Heidelberg/
New York: Springer, 1994, p. 1 et seq.
14 Haya de la Torre
(Colombia v. Peru), 1950
Pablo Sandonato de León

I Presentation
Very few topics are as intrinsically linked to Latin America as diplomatic
asylum.1 Latin America’s history of civil wars and insurrections in the nine-
teenth and twentieth centuries demonstrated the need to expeditiously
protect the life and physical integrity of those persecuted for political reasons.
In such circumstances, the jurisdictional immunity enjoyed under diplomatic
premise can constitute a useful tool. The practice of some Latin American
states allowing persons persecuted for political reasons to enter the premises
of their embassies or the private residence of their chiefs of diplomatic
mission abroad in order to be protected by the jurisdictional immunity of the
diplomatic premise (hereinafter the ‘asylum state’) raises a series of problems
in international law (i.e. who may benefit from it? and under what condi-
tions? what state or states determine whether the requester can effectively
benefit from it and whether the conditions are actually met? when does it
actually start and until when does it last? how does it come to an end?). A
number of treaties were concluded at different times by Latin American
states2 to provide an uncontroverted legal basis for this practice while
attempting to solve those problems. Among those treaties is the 1928
Havana Convention on Political Asylum (hereinafter the ‘Convention’).
Mr Victor Raul Haya de la Torre was a Peruvian politician and head of the
American People’s Revolutionary Alliance. On 3 October 1948, a military
rebellion broke out in Peru and was suppressed the very same day. Criminal
proceedings were instituted against Mr Haya de la Torre for instigating and
directing the rebellion.
On the night between 3 and 4 January 1949, Mr Haya de la Torre felt he

1 See, among others: Perez Gomar, Curso elemental de derecho de gentes, Montevideo: 1864,
p. 177 and A. Álvarez, Le droit international américain, Paris: Pedone, 1910, p. 74.
2 These are: the 1889 Montevideo Treaty on International Penal Law, 23 January, 1889,
Organisation of American States Official Records (OEA/Ser.X/7), Treaty Series 34; the
1928 Havana Convention on Political Asylum, 20 February, 1928, 132 League of Nations
Treaty Series 323; and the 1954 Caracas Convention on Diplomatic Asylum, 28 March,
1954, United Nations Treaty Series, vol. 1438, I-24377.
158 Pablo Sandonato de León

was persecuted for political reasons and fearing for his life and physical
integrity, requested and was permitted by the Colombian ambassador to
Peru to enter the premises of the Colombian Embassy. Colombia later
requested a safe-conduct to Peru to allow Mr Haya de la Torre (hereinafter
the ‘refugee’) to leave the country. Peru denied this on the ground that the
refugee was not politically persecuted but was accused of common crimes
and was therefore not entitled to benefit from diplomatic asylum or, as it is
also known, ‘political asylum’.
The dispute was ultimately submitted to the International Court of Justice
(hereinafter ‘the Court’) that rendered its judgment on 20 November 1950
(hereinafter the ‘Asylum Judgment’). The Court ruled that Colombia was
not entitled to unilaterally qualify the nature of the offence attributed to the
refugee and that Peru was not bound to deliver safe-conduct. The Court also
found that the asylum was not granted in conformity with the Convention
because the granting of asylum cannot be an obstacle to proceedings insti-
tuted by legal authorities operating in accordance with the law.
On the same day of the Asylum Judgment, Colombia requested the Court
for an interpretation of the judgment (hereinafter the ‘request for interpre-
tation’). One week later, on 27 November 1950, the Court rendered its
judgment declaring the request for interpretation inadmissible.
Following the Asylum Judgment and the decision on the request for inter-
pretation, Peru requested Colombia to surrender the refugee. However, in
Colombia’s view, to surrender the refugee would have been contrary to the
Asylum Judgment and the Convention. The parties were unable to reach an
agreement on the manner in which effect was to be given to the Asylum
Judgment. On 13 December 1950, less than a month after the Asylum
Judgement and some fifteen days after the Court’s decision on the request
for interpretation, Colombia instituted new proceedings against Peru. This
new case is known as the Haya de la Torre case.

II – The proceedings before the Court

As a preliminary remark, it is worth mentioning that the Court counted on
its bench3 two Latin American judges: Mr José Gustavo Guerrero and Mr
Alejandro Álvarez. Judge Guerrero, from El Salvador, was a distinguished
Latin American internationalist of his time.4 He was the last President of the

3 At the time the Court was composed by President Basdevant, Vice-President Guerrero and
Judges Álvarez, Hackworth, Winiarski, Zoričić, De Visscher, McNair, Klaestad, Badawi
Pacha, Read and Hsu Mo.
4 Among his works, see: La responsabilidad internacional de los estados por los daños causados
en su territorio a la persona o bienes de los extranjeros, Paris: Lahure, 1926; La codification
du droit international: la première conférence (La Haye, 13 mars – 12 avril 1930), Paris:
Pedone, 1930; L’Union panaméricaine et la Société des nations, Leyde: Sijthoff, 1937; El
orden internacional, Universidad Autónoma de El Salvador, 1945; and L’ordre internatio-
nal, hier, aujourd’hui, demain, Neuchâtel: La Baconnière, 1945.
 Haya de la Torre (Columbia v. Peru), 1950 159

Permanent Court of International Justice and the first President of the

International Court of Justice and who at the time was the Vice-President of
the Court. Judge Álvarez, from Chile, was also a distinguished Latin
American internationalist, well known for his stance in championing the exis-
tence of a Latin American approach to international law.5
In its memorial, Colombia submitted both principal and alternative
claims. In its principal claim, Colombia requested the Court to determine
the manner in which effect was to be given to the Asylum Judgment and to
state whether Colombia was bound to surrender the refugee to Peru. Should
the principal claim not be granted, Colombia, in its alternative claim,
requested the Court to adjudge, in the exercise of its ordinary competence,
whether in accordance with the law in force between the parties ‘and partic-
ularly American international law’6 Colombia was bound to surrender the
refugee to Peru.
In its counter-memorial, Peru also submitted both principal and alterna-
tive claims. As a principal claim, Peru requested the Court to determine in
what manner the Asylum Judgment was to be executed by Colombia and to
dismiss Colombia’s submission that it was not bound to surrender the
refugee to Peru. Should the principal claim not be granted, Peru requested
the Court, in its alternative claim, to declare that the asylum granted to the
refugee ought to have ceased immediately after the delivery of the Asylum
Judgment and must cease ‘in order that the Peruvian justice may resume its
normal course’.7
As the Court’s bench did not include any judge of the nationality of the
parties, Colombia appointed Mr José Joaquin Caicedo Castilla, while Peru
appointed Mr Luis Alayza y Paz Soldan both to act as judges ad hoc.
Colombia also informed the Registrar that it relied on the Convention as the
applicable law and requested the Registrar to give effect to Article 63 of the
Statute of the Court and inform all states parties to the Convention. In response
to the Registrar’s information, Cuba addressed a letter and a memorandum to
the Court. The Court considered Cuba’s letter as a declaration of intervention.
The memorandum was in relation to the construction of the Convention and
was based almost entirely on the Asylum Judgment. It also contained Cuba’s

5 Among his works, see: Le droit international américain: son fondement, sa nature d’après
l’histoire des états du nouveau monde et leur vie politique et économique, Paris: A. Pedone,
1910; La codification du droit international, ses tendance – ses bases, Paris: A. Pedone, 1912;
Le droit international de l’avenir, Washington, DC, 1916; Le nouveau droit international
public et sa codification en Amérique, Paris: A. Rousseau, 1924; Considérations générales sur
la codification du droit international américain: (code de droit international des états
américains), Rio de Janeiro: Impr. Nacional, 1927; and Le droit international nouveau
dans ses rapports avec la vie actuelle des peuples, Paris: Librairie Pedone, 1959.
6 I.C.J. Pleadings, Oral Arguments, Documents, Haya de la Torre Case (Colombia v. Peru),
Judgment of June 13th, 1951, Part I, p. 10.
7 I.C.J. Pleadings, Oral Arguments, Documents, Haya de la Torre Case (Colombia v. Peru),
Judgment of June 13th, 1951, Part I, p. 98.
160 Pablo Sandonato de León

general attitude in regard to asylum. Colombia did not object to Cuba’s inter-
vention, while Peru considered that the time of the declaration had expired and
was an attempt by Cuba to appeal the Asylum Judgment.
The Court admitted the intervention of Cuba during its public hearing
held on 16 May 1951.

III The judgment

A. Presentation
The Court rendered its judgment in the Haya de la Torre case (hereinafter
the ‘Judgment’) on 13 June 1951,8 exactly six months after the institution of
proceedings, and less than a month after the hearings. While it is impossible
to draw any conclusion from the short time in which the Court delivered the
judgment, it is also difficult not to take this aspect into account when reflect-
ing on its general outcome. This is particularly so, if one recalls that the
Judgment was unanimously adopted on all claims, with the exception of the
claim to surrender the refugee, for which the judge ad hoc appointed by Peru
could not concur. While the legal value of a judgment adopted by unanim-
ity is not greater than the one adopted by the casting vote of the President,
the former holds a higher moral authority, or is at least more persuasive, and
reflects a general consensus within the bench as to the clarity of a given situ-
ation or the interpretation of a given norm. Certainly, in the internal
dynamics of the Court, as in every human context, personalities count, and
the personality of the President of the Court is certainly a factor not to be
underestimated. In other words, even if the deliberations of the Court
remain secret, it does not seem unreasonable to advance the hypothesis that
the esteemed intellectual authority of President Jules Basdevant and Vice-
President José Gustavo Guerrero both played an important role for reaching
unanimity. However, the elliptical approach adopted by the Court in the
Judgment, coupled with its previous decisions in the Asylum Judgment and
the request for intervention, makes this judgment one of the most incom-
prehensible, and perhaps also most severally criticized,9 judgments rendered
by the Court. This is however not our contention in this article. As we shall
see, their Judgment contributed to clarify a number of issues in international
law. In addition, there is no contradiction in the Court’s finding that asylum
was to cease, but Colombia was under no obligation to bring that about by
surrendering the refugee to the Peruvian authorities.

8 Haya de la Torre Case, Judgment of June 13th, 1951: I.C.J. Reports, p. 71.
9 See, for instance: Barcia Trelles, C., ‘El Derecho de Asilo Diplomático y el caso Haya de la
Torre’, Revista Española de Derecho Internacional III, 3, 1950, 59–66, and: Vieira, M. A.,
Derecho de Asilo Diplomático (asilo político), Montevideo: Biblioteca de Publicaciones
Oficiales de la Facultad de Derecho y Ciencias Sociales de la Universidad de la República,
1961, p. 123.
 Haya de la Torre (Columbia v. Peru), 1950 161

B. Jurisdiction
The first issue considered by the Court was that of its jurisdiction. In the
view of the parties consenting to its jurisdiction, there was no need for the
Court to make any special analysis of this issue. In fact, the Court simply
stated that the parties after having consented to its jurisdiction without
objection ‘[t]his conduct … is sufficient to confer jurisdiction on the
Court’.10
A necessary word of caution is however required. It is not because the
parties consented to its jurisdiction and that no objection thereon was raised
that the Court could simply avoid analysing its jurisdiction. In fact, the judg-
ment confirms that, even in circumstances where the parties consent to its
jurisdiction and no objection is raised, the Court will nevertheless evaluate
whether or not it has jurisdiction to deal with a case.

C. Intervention
The second issue considered by the Court was the declaration of interven-
tion filed by Cuba. While it is clear from the Rules of the Court11 that
intervention is an incidental proceeding within a principal proceeding,12 the
Court nevertheless insisted ad abundantiorem cautelam that ‘every inter-
vention is incidental to the proceedings in a case’.13
The Haya de la Torre case was the first case where a declaration of inter-
vention under Article 63 of the Statute was made before the Court.14 It is
therefore comprehensible that the Court felt the need to insist on one of the
conditions that such a declaration must satisfy. In fact, a declaration under
Article 63 becomes an intervention ‘if it actually relates to the subject-matter
of the pending proceedings’.15 Once this link between the declaration and
the subject-matter of the case has been established, it is solely for the Court
to accept the intervention. Cuba’s intervention, as a party to the
Convention, was an intervention as of right.16

10 Haya de la Torre Case, Judgment of June 13th, 1951: I.C.J. Reports, p. 78.
11 Official document: Rules of Court. See: www.icj-cij.org/documents/index.php?p1=
4&p2=3&p3=0 (accessed 13 July 2016).
12 Rules of Court, Part III ‘Proceedings in Contentious Cases’, Section ‘D’ Incidental
Proceedings, subsection 4 ‘Intervention’.
13 Haya de la Torre Case, Judgment of June 13th, 1951: I.C.J. Reports, p. 76.
14 A precedent exists in the jurisprudence of the Permanent Court of International Justice:
Case of the S.S. “Wimbledon”, Judgment of 28 June 1923 (Question of Intervention by
Poland), P.C.I.J., series A, n°. 1, p. 13.
15 Haya de la Torre Case, p. 76.
16 Ruda, J. M., ‘Intervention before the International Court of Justice’, in Fifty Years of the
International Court of Justice; Essays in honour of Sir Robert Jennings, Vaughan Lowe and
Malgosia Fitzmaurice (eds), Cambridge: Grotius Publications/Cambridge University
Press, 2007, pp. 487–502.
162 Pablo Sandonato de León

Another issue that the Court considered when analyzing Cuba’s declara-
tion was the nature and content of Cuba’s memorandum. It will be recalled
that the memorandum almost exclusively concerned questions discussed in
the Asylum Judgment and not specifically the interpretation of the
Convention, which was actually the instrument granting Cuba the right to
intervene. In fact, to the extent the memorandum discussed matters already
dealt with in the Asylum Judgment, the intervention should have been
rejected, as these matters were immune from review under the authority of
res judicata. This risk was, however, avoided by the Cuban agent who,
during the hearings, stated that the intervention was based on the interpret-
ation of a new aspect of the Convention not previously decided in the
Asylum Judgment, namely the surrender of the refugee.17

D. The principal submissions18

Colombia’s principal submission consisted of two parts. The first part being
the manner in which effect was to be given to the Asylum Judgment; the
second in relation to the surrender of the refugee.

1. First part: the manner in which effect was to be given to the

Asylum Judgment
In the first part of its principal submission, Colombia requested the Court to
state the manner in which effect was to be given to the Asylum Judgment.
Peru made the same request in its first submission. The Court rejected the
submission by unanimous vote.
The parties clearly wanted the Court to make a choice on the various
courses available to terminate diplomatic asylum and determine exactly what
was to be done to terminate the same asylum the Court previously found to
be granted not in conformity with the Convention. The Court refused to be
placed at such crossroads and found that the choice among different options
is ‘conditioned by facts and by possibilities which to a very certain extent the
Parties are uniquely positioned to appreciate’.19 On the one hand, and taking
into account the parties’ expectations, such a reply can be seen as largely
unsatisfactory, as it may be seen as not replying to the parties’ request. On
the other hand, however, the reply does not appear as unsatisfactory as one
might initially perceive. In fact, once the conditions for granting diplomatic
asylum are met, the actual decision whether to grant it or not is based on
political evaluation.

17 Haya de la Torre Case (Colombia v. Peru), Judgment of June 13th, 1951, Part II: Oral
proceedings, p. 172.
18 Principal and alternative submissions refers to Colombia’s claims as applicant in the
proceedings. Reference to respondent’s claims is made against applicant’s claims.
19 Haya de la Torre Case, Judgment of June 13th, 1951: I.C.J. Reports, p. 79.
 Haya de la Torre (Columbia v. Peru), 1950 163

The same could be said in relation to the decision on how to terminate

diplomatic asylum. The Court perhaps had this political evaluation in mind
when it noted that a choice among the different courses to terminate diplo-
matic asylum ‘could not be based on legal considerations but only on
considerations of practicability or of political expediency’.20 In such circum-
stances, since the decision in question is basically a political decision, the
Court’s finding that ‘it is not part of the Court’s judicial function to make
such a choice’,21 assumes its full meaning.
This is not to say that the Court will not adjudicate on legal questions
having political aspects. Nor is it to say that diplomatic asylum is a non-justi-
ciable matter. Indeed, the Court can and had already declared that the
asylum had not been granted in accordance with the requirements of the
Convention and had ordered it to be terminated. The fact that the Court
found that the actual choice of the manner of terminating the asylum is a
political choice, does not affect the conclusion that the asylum was not ille-
gal as it was not granted in accordance with the Convention.
A distinction should then be made between the refugee seeking to protect
his life or physical integrity and the decision to grant asylum once all neces-
sary conditions are met. The latter is clearly a political decision with legal
consequences, even if ‘its moral justification is to be found in considerations
of humanity’.22

2. Second part: the surrender of the refugee

In the second part of its principal submission, Colombia requested the Court
to determine whether ‘in execution’ of the Asylum Judgment23 it was bound
to surrender the refugee to Peru. Peru in turn requested the Court, in its
second submission, to dismiss the second part of Colombia’s principal
submission. In other words, Peru was seeking a declaration that Colombia
was bound to surrender the refugee to Peru.
The Court replied that it could not say whether or not Colombia was
bound to surrender the refugee to Peru ‘in execution’ of the Asylum
Judgment simply because Peru had not requested the surrender of the
refugee in the Asylum Judgment.
One may be disappointed by the Court’s finding in not taking an upfront
decision on the surrender of the refugee. However, one must also bear in
mind principles of procedural law, such as res judicata and ne ultra petita, as
well as the limits of the international judicial function in its current state. In
this regard, it is worth recalling that the Court cannot surpass the requests
of the parties. Article 36, paragraph 1 of the Statute provides, precisely, that

20 Ibid.
21 Ibid.
22 Institut de droit international, Annuaire, session of Bath, vol. 43, 1950, no.1, p. 138.
23 Haya de la Torre Case, p. 79.
164 Pablo Sandonato de León

the ‘jurisdiction of the Court comprises all cases which the parties refer to it’
(emphasis added). Similarly, Article 38, paragraph 1 of the Statute provides
that the function of the Court is ‘to decide in accordance with international
law such disputes as are submitted to it’ (‘les différends qui lui sont soumis’)
(emphasis added). Like it or not, the Court cannot be blamed for what the
parties did not refer or submit to it.

E. The alternative submission

In its alternative submission, Colombia requested the Court, in the exercise
of its ordinary competence, to adjudge whether in accordance with the law
in force between the parties ‘and particularly American international law’,
Colombia was bound to surrender the refugee to Peru. Peru, in its second
submission, requested the Court to dismiss Colombia’s alternative submis-
sion that it was not bound to surrender the refugee to Peru.
The Court recalled that Article 1 of the Convention provides one option
to terminate diplomatic asylum, namely the issue of safe-conduct for the
departure of the refugee from the state where the diplomatic premise is
located (hereinafter the ‘territorial state’). Under the terms of the Asylum
Judgment, safe-conduct could only be claimed under the Convention if the
asylum had been regularly granted and if the territorial state had requested
the departure of the refugee. The problem was that none of those require-
ments was met in the case at hand and the Convention remained silent as to
how to terminate a diplomatic asylum when neither of those requirements
was met.
Short of an express provision in the Convention, the Court could not
conclude the existence of a positive obligation incumbent upon Colombia to
surrender the refugee to Peru. In doing so, the Court confirmed that the
existence of such an obligation cannot be presumed.
In the Court’s judgment, the absence of an obligation to surrender the
refugee can be also explained because interpreting the Convention’s silence
as to impose an obligation as such would be contrary to the Latin American
tradition that inspired the Convention and according to which a political
refugee ought not to be surrendered. The Court’s reference to ‘Latin
American tradition’24 is curious but comprehensible. Tradition is certainly
not a source of international law, but is used by the Court as a pre-existing
practice to interpret a subsequent treaty. This is the opposite of perhaps more
common situations, as will be later foreseen by the Vienna Convention on
the Law of the Law of Treaties, whereby provisions of a treaty are interpreted
according to subsequent practice. Be that as it may, the Court’s Judgment
appears to confirm that a pre-existing practice can be an element in the inter-
pretation of the provisions of a treaty.

24 Haya de la Torre Case, p. 81.

 Haya de la Torre (Columbia v. Peru), 1950 165

In addition, recognizing that Colombia should surrender the refugee

would be, in the view of the Court, equivalent to recognizing an obligation
to render positive assistance to the authorities of the territorial state in the
prosecution of a political refugee. The Court concluded that such an obliga-
tion ‘could not be recognized without an express provision to that effect in
the Convention’.25
The Court also recalled that diplomatic asylum should not become a
permanent situation and should remain, according to Article 2, paragraph 2
of the Convention, only ‘for the period of time strictly indispensable for the
person who has sought asylum to ensure in some other way his safety’.26
Three things now seem clear. First, once all conditions are met, the grant-
ing of diplomatic asylum is a political decision. Second, the Convention does
not impose any obligation to surrender the refugee. Third, diplomatic
asylum should remain for the time strictly necessary to ensure the safety of
the refugee. In light of these three factors, the silence of the Convention in
providing a solution on how to terminate an irregularly granted diplomatic
asylum appears to suggest the parties’ intention ‘to leave the adjustment of
the consequences [of granting diplomatic asylum]… to decisions inspired by
considerations of convenience or of simple political expediency’.27
It should also be noted that, despite Colombia’s reference to an ‘American
international law’ in its submission as a legal ground for its claims, the Court
made no reference whatsoever to it in the Judgment. It seems that by avoid-
ing any reference to an ‘American international law’ the Court attempted to
implicitly downplay its controversial reference in the Asylum Judgment to a
regional or local custom peculiar to Latin American states.28
The Court certainly bore in mind the inherent tension that diplomatic
asylum generates between, on the one hand, the refugee’s safety and, on the
other hand, the regular application of the territorial state’s law and the exer-
cise of its jurisdiction by legally constituted tribunals. In this sense, a word of
caution seems to be addressed to states when granting diplomatic asylum
with the Court emphasizing that asylum ‘would not authorize the diplomatic
agent to obstruct the application of the laws of the [territorial] country,
whereas it is his duty to respect them’.29 The issue remains open as to the
options available to the territorial state should the granting of diplomatic
asylum actually obstruct the regular application of its laws and the exercise of
its jurisdiction by legally constituted tribunals. Similarly, the issue remains

25 Ibid.
26 Haya de la Torre Case, p. 80.
27 The paragraph is particularly revealing: ‘to infer from this silence that there is an obligation
to surrender a person to whom asylum has been irregularly granted would be to disregard
both the role of these extra-legal factors in the development of asylum in Latin America,
and the spirit of the Havana Convention itself’. Haya de la Torre Case, p. 81.
28 Colombian-Peruvian Asylum case, Judgment on November 20th, 1950: I.C.J. Reports 1950,
p. 276.
29 Haya de la Torre Case, p. 81.
166 Pablo Sandonato de León

open as to the options available to the territorial state should the granting of
diplomatic asylum constitute a threat to its national security, public order or
other essential interest, and this notwithstanding the self-contained character
of the rules of diplomatic law.
For all the above reasons, the Court concluded that Colombia was under
no obligation to surrender the refugee.
This brings us to our last point, Peru’s third and alternative submission
should the Court not be able to state in which manner the asylum should
conclude. In the first part of its alternative submission, Peru requested the
Court to declare that the asylum was contrary to the Convention and ought
to have ceased immediately after delivery of the Asylum Judgment and must
cease after delivery of the judgment. In the second part of its alternative
submission, Peru added that the asylum should cease ‘in order that Peruvian
justice may resume its normal course’.30
The Court replied unanimously to the first part of Peru’s alternative
submission. It recalled that in the Asylum Judgment it held that the asylum
was not granted in conformity with the Convention. Such finding ‘entails a
legal consequence, namely that of putting an end to an illegal situation’.31 In
other words, ‘Colombia, which had granted the asylum irregularly is bound
to terminate it’.32 In making such a declaration, the Court says nothing new,
but recalls one of the principles of the international responsibility of states
according to which a state that has breached an international obligation is
bound to cease the wrongful conduct. Accordingly, Peru could legally
demand the termination of a situation established in violation of the
Convention, and Colombia would be ‘bound to terminate it’.
What follows is a conclusion that has raised significant objection, at least
in Latin America: ‘asylum must cease, but … Colombia is under no obliga-
tion to bring this about by surrendering the refugee to the Peruvian
authorities’.33 It has been submitted that this is contradictory and of no prac-
tical use.34 The objections raised against the Court’s conclusion are within
themselves objectionable.
Indeed, the conclusion of the Court may at first glance appear contradic-
tory. The Court affirms: ‘[t]here is no contradiction between these two
findings, surrender is not the only way of terminating asylum’.35 There are
indeed a broad range of ways to terminate diplomatic asylum, such as: (i) the
refugee freely surrendering himself; (ii) the asylum state surrendering the
refugee; (iii) the surrender of the refugee or by the refugee himself to a third
state; (iv) the withdrawal of the charges against the refugee; (v) the refugee

30 Haya de la Torre Case, p. 82.

31 Ibid.
32 Ibid.
33 Haya de la Torre Case, p. 83.
34 See supra footnote 11.
35 Haya de la Torre Case, p. 82.
 Haya de la Torre (Columbia v. Peru), 1950 167

being acquitted of all charges; (vi) the territorial state requesting that the
refugee leaves its territory; (vii) the refugee being authorized to leave the
territorial state and being granted a safe-conduct; (viii) the refugee dying;
(ix) a change of government in the territorial or in the asylum state allowing
for the refugee to leave the diplomatic premises; (x) the refugee being
pardoned; (xi) the asylum and the territorial state breaking diplomatic rela-
tions; (xii) or, even more extreme, the territorial state considering the
presence of the refugee a threat to its national security, public order or other
essential interest and, with prior notice and deadline, suspending the diplo-
matic status of the premises of the mission with the sole purpose of arresting
the refugee. It was however not for the Court to make any such or alterna-
tive proposals. The Court does not make proposals but adjudges the dispute
that is submitted to it, in accordance with international law.
As for the second part of Peru’s alternative question, namely that diplo-
matic asylum should cease in order for Peruvian justice to resume its normal
course, the Court did not agree for the reasons already explained. Indeed, no
such obligation could be said to exist without an express provision and such
an obligation would also be contrary to the Latin American tradition that
inspired the Convention and, accordingly, to which a political refugee ought
not to be surrendered.
Finally, it is worth noting that the last paragraph of the judgment encour-
ages the parties, ‘now that their mutual legal relations have been made
clear’,36 to find a practical and satisfactory solution. In fact, once the Court
has made the mutual legal relations of the parties to a dispute clear, they are
presumed to be able to find a practical and satisfactory solution. Such was in
fact the case, even if it still took some years for the refugee to leave the
Colombian embassy in Peru.

IV Conclusion
Latin American authors of international law have traditionally identified
diplomatic asylum as a Latin America legal institution. It is however not only
a legal institution, but also one that lies at the crossroads of political expedi-
ency, diplomatic immunities and elementary considerations of humanity.
While diplomatic asylum is, at least for those states party to the Convention,
a legal notion, the decision to grant or not diplomatic asylum is political in
nature and inspired by elementary considerations of humanity. The
Judgment clearly shows this tension.
The Judgement, and through it two Latin American countries,
contributed to clarifying the rules governing diplomatic asylum. In particu-
lar, that the decision to grant or not diplomatic asylum is a political decision,
so much as it is the decision on how to terminate it. The Judgment also

36 Haya de la Torre Case, p. 83.

168 Pablo Sandonato de León

clarified that under the Convention there is no obligation to surrender the

refugee to the territorial state, that the surrender of the refugee is not the
only way of terminating asylum, that diplomatic asylum should not become
a permanent situation and should remain only for the time strictly indispens-
able for the refugee to ensure his safety in some other way and that, despite
the considerations of humanity that inspires it, diplomatic asylum does not
authorize an obstruction of the application of the laws of the territorial state.
The Judgment, delivered less than five years after the coming into exis-
tence of the Court, also contributed to clarifying some specific aspects of the
Court’s procedure and of international law in general. Indeed, the Judgment
confirmed that the Court will evaluate its jurisdiction to deal with a specific
case even if the parties have consented to its jurisdiction and raised no objec-
tions to it. The Judgment also settled the criteria that an intervention under
Article 63 of the Statute of the Court shall relate to the subject matter of the
proceedings. In terms of international law in general, the Judgment legit-
imized the use of a pre-existing practice to interpret a subsequent treaty,
assimilated a tradition to a practice, confirmed that an obligation is not to be
presumed and also confirmed that a State that has breached an international
obligation is bound to cease the wrongful act.
Sadly, the Judgment is remembered for what it failed to do, namely to
provide a manner in order to terminate a diplomatic asylum irregularly
granted. It was however not for the Court to fashion a solution when the
applicable law failed to provide for one. In this regard, the criticism against
the Judgment is largely unfounded.

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——, La codification du droit international, ses tendance – ses bases, Paris: A. Pedone,
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——, Le droit international de l’avenir, Washington, DC: American Institute of
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——, Le nouveau droit international public et sa codification en Amérique, Paris: A.
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——, Considérations générales sur la codification du droit international américain:
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——, Le droit international nouveau dans ses rapports avec la vie actuelle des peuples,
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82–86.
C. Barcia Trelles, ‘El Derecho de Asilo Diplomático y el caso Haya de la Torre’,
Revista Española de Derecho Internacional vol. III, 3, 1950, 59–66.
P. Behrens, ‘The Law of Diplomatic Asylum – A Contextual Approach’, Michigan
 Haya de la Torre (Columbia v. Peru), 1950 169

Journal of International Law 35, no. 2, 2014, 319–367.

J.J. Caicedo Castilla, ‘El derecho de asilo’, Revista española de derecho internacional
10, 1957, 446–464.
C. Diaz Cisneros, ‘Las sentencias de la Corte Internacional de Justicia en el caso Haya
de la Torre’, Revista jurídica argentina La Ley 78, 1955, 831.
H.J. Gobbi, ‘Ensayo de una crítica del asilo diplomático’, Revista española de derecho
internacional ’, 15, 1962, 413–435.
J.G. Guerrero, La responsabilidad internacional de los estados por los daños causados en
su territorio a la persona o bienes de los extranjeros, Paris: Lahure, 1926.
——, La codification du droit international: la première conférence (La Haye, 13 mars
– 12 avril 1930), Paris: Pedone, 1930.
——, L’Union panaméricaine et la Société des nations, Leyde: Sijthoff, 1937.
——, El orden internacional, s/l: Universidad Autónoma de El Salvador, 1945.
——, L’ordre international, hier, aujourd’hui, demain, Neuchâtel: La Baconnière,
1945.
L. Jully, ‘L’asile diplomatique devant la Cour internationale de Justice’, Die Friedens-
Warte, Bd. 51, 1951, 20–58.
Institut de droit international, Yearbook, session of Bath, vol. 43, 1950, no. 1.
G. Perez Gomar, Curso elemental de derecho de gentes, Montevideo, 1864.
J.M. Ruda, ‘Intervention before the International Court of Justice’, Fifty Years of the
International Court of Justice: Essays in honour of Sir Robert Jennings, Vaughan
Lowe et Malgosia Fitzmaurice (eds), Cambridge: Grotius Publications/
Cambridge University Press, 2007, 487–502.
J.L.F. Van Essen, ‘Some Reflections on the Judgements of the International Court of
Justice in the Asylum and Haya de la Torre Case’, International and Comparative
Law Quarterly 1, 1952, 533–539.
M.A. Vieira, Derecho de Asilo Diplomático (asilo político). Montevideo: Biblioteca de
Publicaciones Oficiales de la Facultad de Derecho y Ciencias Sociales de la
Universidad de la República, 1961.
15 Asylum (Columbia v. Peru), 1949
and request for interpretation of
the judgment of 20 November
1950 in the Asylum Case
(Colombia v. Peru), 1950
Guy S. Goodwin-Gill 1

I The Asylum cases in brief

On 3 January 1949, Víctor Raúl Haya de la Torre, the Peruvian founder and
leader of Allianza Popular Revolucionaria Americana (APRA), was granted
asylum in the Embassy of Colombia in Lima.2 It would be five years, four
months and three judgments of the International Court of Justice (here-
inafter ‘the Court’) before he was able to leave.
The Colombian Ambassador requested safe-conduct for Haya de la Torre,
but the government of Peru declined, arguing that the 1928 Havana
Convention,3 to which both states were party, did not oblige it to comply.
Unable to agree on a compromis, the two governments nevertheless signed
the ‘Act of Lima’ on 31 August 1949, following which Colombia instituted
proceedings before the Court. Basing its case on the 1911 Bolivarian
Agreement on Extradition, the 1928 Havana Convention on Asylum,4 and
‘American international law’, Colombia argued that it had the right unilat-
erally and definitively to ‘qualify’ the nature of the offence for which
diplomatic asylum had been granted; and that Peru, as the territorial state,
was obliged to grant safe-conduct to the refugee.5
In its counter-claim, Peru argued that asylum had been granted in viola-
tion of Article 1, paragraph 1 of the Havana Convention, which prohibited
the grant of asylum for common crimes, and contrary to Article 2, paragraph

1 The excellent research assistance of Sotirios-Ioannis Lekkas in the preparation of this chap-
ter is gratefully acknowledged.
2 Asylum Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, pp. 266, 272.
3 Bolivarian Agreement on Extradition, Caracas, 11 July 1911, OAS Off. Rec.
(OEA/SER.x.1), Treaty Series, No. 34.
4 Convention on Asylum, Havana, 20 February 1928, OAS Off. Rec. (OEA/SER.X/1),
Treaty Series, No. 34.
5 Asylum Case (Colombia v. Peru), op. cit., p. 269.
 The asylum cases 171

2, which provided further that asylum could not be granted except in urgent
cases.
By 14-2, the Court rejected Colombia’s submission that it had a right of
unilateral and definitive qualification; and by 15-1, that it was entitled to
demand safe-conduct. Also by 15-1, the Court rejected the first part of
Peru’s counter-claim, and held that the grant of asylum had not violated
Article 1, paragraph 2 of the Havana Convention; but by 10-6, the Court
upheld the Peru counter-claim that there was no urgency.6
On the day the judgment was handed down (20 November 1950),
Colombia lodged a request for interpretation, asking whether the decision
meant that legal effects were to be attributed to the Colombian
Ambassador’s qualification of the offence imputed to Haya de la Torre; that
Peru was not entitled to demand surrender, and that Colombia was not
bound to hand over the refugee; or that, on the contrary, Colombia was
bound to deliver him up. On 27 November 1950, the Court held 12-1 that
the request was inadmissible, there being (at that time) no dispute between
the parties as to the meaning and scope of the judgment. Moreover, the first
question had not been among those originally submitted by the parties,
while the remaining two questions were simply alternative ways of approach-
ing the issue of surrender – again, a point that had not been put to the
Court, and on which the Court could make no decision without hearing
both sides.
A dispute was not long in the making. The next day, Peru requested the
immediate surrender of Haya de la Torre, which Colombia rejected on 6
December, on the ground that nothing in the decision obliged it to hand
over the refugee.7 It then instituted fresh proceedings on 13 December
1950, asking the Court how effect was to be given to the original judgment.
As explained elsewhere in this volume, the Court unanimously rejected
Colombia’s principal submission and also part of Peru’s case.
By 13-1, however, the Court upheld Colombia’s alternative argument,
finding ‘in the exercise of its ordinary competence’, rather than in terms of
the first judgment,8 that Colombia was not bound to deliver Haya de la
Torre to the Peruvian authorities, as he was not accused of a common
crime.

6 Ibid., pp. 282–4. Judges Alvarez, Badawi Pasha, Read, Azevedo and Caicedo Castilla
dissented; Judge Zoričić voted with the majority, save with regard to the issue of urgency,
on which he shared the views of Judge Read.
7 Bishop, W. W., ‘Judicial Decisions: Haya de la Torre Case (Colombia/Peru)’, American
Journal of International Law 45, 1951, 781, 783–4.
8 Haya de la Torre Case, Judgment, I.C.J. Reports 1951, Convention on Asylum, Havana, 20
February 1928, OAS Off. Rec. (OEA/SER.X/1), Treaty Series, No. 3471, 79.
172 Guy S. Goodwin-Gill

II The general approach of the court in the Asylum cases

A. Customary international law

The judgment of the Court in the first case made a clear contribution to the
doctrine of international law, and it continues to be widely cited, particularly
on evidence and proof of custom. Much contemporaneous criticism,
however, was often directed at the perceived failure of the Court to appreci-
ate the significance of ‘American international law’, the importance of
diplomatic asylum in regional context and beyond, and the need for a less
formalistic approach to treaty interpretation.9 The Court was also criticized
for having simply handed down decisions, rather than a solution, which some
characterized as verging on a non liquet.10
More positively, leading commentators, such as Brownlie, have
commended the Court’s clarity and its ‘leading pronouncements’ on the
specific elements of local or regional custom,11 quoting extensively what has
become a seminal part of the judgment dealing with local or regional
custom:

The Party which relies on a custom of this kind must prove that this
custom is established in such a manner that it has become binding on the
other Party. The Colombian Government must prove that the rule
invoked by it is in accordance with a constant and uniform usage prac-
tised by the States in question, and that this usage is the expression of a
right appertaining to the State granting asylum and a duty incumbent on
the territorial State. This follows from Article 38 of the Statute of the

9 See generally, Barcía Trelles, C., ‘El derecho de asilo diplomático y el caso Haya de la Torre:
Glosas a una sentencia’, Revista española de derecho internacional 3, 1950, 753; van Essen,
J. L. F., ‘Some Reflections on the Judgments of the International Court of Justice in the
Asylum and Haya de la Torre Cases’, International and Comparative Law Quarterly 1,
1952, 533.
10 See generally, Jully, L., ‘L’asile diplomatique devant la Cour internationale de justice’, Die
Friedens-Warte 51, 1951–3, 20; Green, L. C., ‘International Court of Justice: Right of
Asylum Case (Colombia/Peru) ICJ Reports 1950, p.266’, International Law Quarterly 4,
1951, 229. See also, Lauterpacht, H., The Development of International Law by the
International Court, Cambridge: CUP, 1958, 145; Rosenne, S., The Law and Practice of
the International Court of Justice, Leiden: Martinus Nijhoff, 4th edn, 2006, 201.
11 Brownlie, I., Principles of Public International Law, Oxford: Clarendon Press, 1st edn,
1966, 5–6, 8–9; 7th edn, Oxford: OUP, 2008, 7, 10, 12; Crawford, J., Brownlie’s
Principles of Public International Law, Oxford: OUP, 8th edn, 2012, 30. See also Shaw,
M., International Law, Cambridge: CUP, 2nd edn, 1986, 63–4; 6th edn, Cambridge:
CUP, 2008, 76–7, 93; Kolb, R., The International Court of Justice, Oxford: Hart
Publications, 2013, 935; Lauterpacht, H., Oppenheim’s International Law, London:
Longmans, 8th edn, 1955, 26–7; Combacau, J., and Sur, S., Droit international public,
9th edn, Paris: Montchrestien, 2010, 68–9, 72–3; Rosenne, S., op. cit., 1041.
 The asylum cases 173

Court, which refers to international custom ‘as evidence of a general

practice accepted as law’.12

Colombia’s argument for ‘American international law’ was also treated by

the Court as an argument for custom, which thus assimilated it to the
general standard of Article 38, so denying its potentially special character.13

B. Asylum
Comments on the Court’s approach to the issue of asylum and specifically to
the claim of a ‘unilateral right of qualification’ have tended to be subordi-
nated to questions related to customary international law.14 Although the
analysis was largely conditioned by assumptions regarding sovereignty and
non-intervention, it has nevertheless added clarity to diplomatic asylum, not
least by separating it from an exclusive connection to the inviolability of
diplomatic premises. This, in turn, helps to show how the practice may oper-
ate beyond Latin America, despite the opposition of many states to its legal
character, and thereby contribute to a better understanding of asylum gener-
ally and the rationale for protection.

III Specific aspects of the judgments

A. The customary international law arguments

How the Court characterized the institution and practice of diplomatic

12 Asylum Case (Colombia v. Peru), op. cit., pp. 276–7. The precise context – regional custom
as an exception to fundamental principles of general application – is not always appreciated,
however.
13 For an alternative view, see I.C.J., Dissenting Opinion of Judge Alvarez, Asylum Case
(Colombia v. Peru), pp. 293–4, on ‘American international law’ as a ‘complex of principles,
conventions, customs, practices, institutions and doctrines peculiar to the region’, being a
continental system of law not subordinate to general international law, ‘but correlated to it’;
Alvarez, A., Le droit international nouveau, Paris: Pedone, 1959, 145, suggesting, perhaps
not surprisingly, that ‘American international law’ had been accepted by the Court, ‘au
moins implicitement’. Judge Read, dissenting, referred to ‘a body of conventional and
customary law complementary to universal international law, and governing inter-State rela-
tions in the Pan-American world’: I.C.J., Dissenting Opinion of Judge Read, Asylum Case
(Colombia v. Peru), p. 316. See also, Ronning, C. N., Diplomatic Asylum – Legal Norms and
Political Reality in Latin American Relations, Leiden: Martinus Nijhoff, 1965, 35–41.
14 Earlier commentaries tended to pay more attention to the asylum issue; see, for example,
Fitzmaurice, G. G., ‘The Law and Procedure of the International Court of Justice: General
Principles and Substantive Law’, British Yearbook of International Law 27, 1, 1950, 31–40;
Gonidec, P. F., ‘L’affaire du droit d’asile’, Revue Générale de Droit International Public 55,
1951, 547, 590; Jully, op. cit., 57–8; Morgenstern, F., ‘Diplomatic Asylum’, Law
Quarterly Review 67, 1951, 362, 376–81; Green, op. cit., 238–9; Evans, A. E., ‘The
Colombian-Peruvian Asylum Case: Termination of the Judicial Phase’, American Journal
of International Law 45, 1951, 755.
174 Guy S. Goodwin-Gill

asylum largely determined its approach to customary international law and

its strict treatment of ‘American international law’. The Court thus placed its
analysis firmly in the context of sovereignty, jurisdiction, and non-interven-
tion, and its assumption that diplomatic asylum involves a ‘derogation’ from
sovereignty, understood as the normally exclusive jurisdiction of the territo-
rial state, necessarily had an impact on the evidence and standard of proof.15
Once the Court had opted for a ‘general’ international law approach favour-
ing the principle of non-intervention then, as Lauterpacht observed, a
restrictive interpretation of any argument for exceptions would naturally
follow.16 Having formulated the conditions for a customary rule, ‘the Court
proceeded to apply them in an exacting manner’.17 Colombia’s claim to a
unilateral right of qualification was thus destined to stumble in the face of
such fundamental principles of international law, while an alternative and
more nuanced approach to the underlying premises might well have led
more readily to a solution.

B. The law and practice of diplomatic asylum

Diplomatic asylum has long enjoyed a special place in the law and practice of
Latin American States, but it can also be seen with some regularity in other
regions.18 However, whereas Latin American States have frequently sought to
translate the practice into a treaty-based system of protection, states else-
where have tended to deny its legal character, all the while admitting
nonetheless that refuge may well be accorded in egregious cases.19

15 Brownlie, I., op. cit., 291; Combacau, J., and Sur, S., op. cit., 360; Crawford, J., op. cit.,
451.
16 Lauterpacht, H., Oppenheim’s International Law, op. cit., 52–4; Lauterpacht, H., The
Development of International Law, op. cit., 381–2 (‘decisive weight’ given to intervention).
17 Lauterpacht, H., The Development of International Law, op. cit., 375. See also Jennings, R.
and Watts, A., Oppenheim’s International Law, London: Longmans; 1992; Oxford: OUP,
9th edition, repr. 2008, 30 (so far as regional or particular customary international law
involves departure from a generally applicable rule, its existence is a matter of strict proof).
According to Verdross and Simma, this also explains why the consent of all states is
required: Verdross A. and Simma, B., Universelles Völkerrecht – Theorie und Praxis, Berlin:
Duncker und Humblot 1976, 289.
18 See generally, Ronning, C. N., Diplomatic Asylum – Legal Norms and Political Reality in
Latin American Relations, Leiden: Martinus Nijhoff, 1965.
19 Brownlie notes that the Vienna Convention on Diplomatic Relations makes no provision
for diplomatic asylum, apart from an oblique reference to ‘special agreements’ in Article
41: Brownlie, I., op. cit., 357. Lauterpacht accepted that there was a ‘legal right’ to grant
temporary asylum, on grounds of humanity, in the case of violence or disorder, but that
otherwise diplomatic asylum must be based on treaty: Lauterpacht, H., Oppenheim’s
International Law, op. cit., 796–8. See also Jennings, R. and Watts, A., Oppenheim’s
International Law, op. cit. 1082–6 (on ‘So-called diplomatic asylum’); Ronning, C. N.,
op. cit. 21–3, 66–96, 122–4.
 The asylum cases 175

Colombia argued that it enjoyed the right unilaterally to determine the

political or non-political nature of the offence with which the putative asylee
was charged or convicted.20 Moreover, that its unilateral decision in favour of
the asylee triggered an obligation on the part of the territorial state to accord
the necessary safe-conduct. The Court held that the general principles of
international law referred to in the 1911 Bolivarian Agreement,21 ‘do not
recognize any rule of unilateral and definitive qualification by the State grant-
ing diplomatic asylum’.22 It detected some confusion in the pleadings between
diplomatic and territorial asylum, on the one hand, and extradition, on the
other; its explanation strongly emphasizes the controlling aspect in a diplo-
matic asylum scenario of ‘derogation’ and the principle of non-interference:

In the case of extradition, the refugee is within the territory of the State
of refuge. A decision with regard to extradition implies only the normal
exercise of the territorial sovereignty. The refugee is outside the territory
of the State where the offence was committed, and a decision to grant
him asylum in no way derogates from the sovereignty of that State.
In the case of diplomatic asylum, the refugee is within the territory of
the State where the offence was committed. A decision to grant diplo-
matic asylum involves a derogation from the sovereignty of that State. It
withdraws the offender from the jurisdiction of the territorial State and
constitutes an intervention in matters which are exclusively within the
competence of that State. Such a derogation from territorial sovereignty
cannot be recognized unless its legal basis is established in each particu-
lar case.
For these reasons, it is not possible to deduce from the provisions of
agreements concerning extradition any conclusion which would apply to
the question now under consideration.23

The 1928 Havana Convention also made no provision for the unilateral right
claimed by Colombia, and no such right could be implied in the Convention
or considered as inherent in the institution of asylum. Such an exceptional
competence would itself further derogate from the ‘equal rights’ of qualifi-
cation attributable to other states concerned, and ‘thus aggravate the
derogation from territorial sovereignty’ (emphasis added), even if such a rule
might make the institution more effective.24
The question of effectiveness was taken up in the dissenting opinions, with
Judge Alvarez noting pointedly that a right of appreciation, while its exercise
might be questioned, ‘must naturally appertain to the State granting asylum;

20 On ‘qualification’, see also Ronning, C. N., op. cit., 148–57, 187–213.

21 Above, note 3.
22 Asylum Case (Colombia v. Peru), op. cit., p. 274.
23 Ibid., pp. 274–5.
24 Ibid., p. 275; on practice, see also at 277.
176 Guy S. Goodwin-Gill

if it appertained to the territorial State, the institution of asylum would be

rendered nugatory’.25 Judge Caicedo Castilla, the judge ad hoc for Colombia,
agreed: a unilateral right of qualification was ‘inherent in the very nature’ of
diplomatic asylum, as also in territorial asylum, for otherwise the institution
could not exist.26
Although Colombia relied on a considerable body of practice, it did not
meet the Court’s stringent evidence and proof requirements.27 Moreover,
Peru’s non-ratification of the 1933 and 1939 Montevideo Conventions (on
which Colombia relied as evidence of a pre-existing rule) was perceived as
‘rejection’ of the unilateral qualification rule, notwithstanding certain official
documents appearing to accept it.28
The Court further held that any obligation to grant safe-conduct required
that asylum must have been regularly granted and maintained; that is, to
political offenders, not common criminals, only in urgent cases and for the
time strictly indispensable for the safety of the refugee.29 It interpreted the
Havana Convention to mean ‘that the territorial State may require that the
refugee be sent out of the country, and that only “after” such a demand can
the State granting asylum require the necessary guarantees as a condition of
his being sent out.’30 Peru had not asked that Haya de la Torre leave; on the
contrary, it argued in its counter-claim that asylum had been granted in
breach of the Havana Convention, and that its maintenance constituted a
violation of the treaty.31
The Court had no problem in finding that Haya de la Torre was an
‘accused’, or that Peru had failed to discharge its burden of showing that he
was accused of a common crime. The evidence conclusively showed that the
offence in question – military rebellion – was a political offence, and was
viewed as such even by Peruvian law.32
On the question of urgency, however, the Court was divided. Once again,
the basic premises led the way and the Court thought it ‘inconceivable’ that
the Havana Convention had been intended to provide protection against

25 I.C.J., Dissenting Opinion of Judge Alvarez, Asylum Case (Colombia v. Peru), p. 297.
26 I.C.J., Dissenting Opinion of Judge Caicedo Castilla, Asylum Case (Colombia v. Peru), pp.
363–6.
27 Asylum Case (Colombia v. Peru), op. cit., p. 277.
28 Ibid., p. 278. Compare Judge Read’s dissenting opinion at 321, in which he cites numer-
ous instances of relevant practice and that of Judge Caicedo Castilla at 363. See also
Lauterpacht, H., The Development of International Law, op. cit., 376 (non-ratification can
be due to reasons other than opposition).
29 Asylum Case (Colombia v. Peru), op. cit., p. 278 (Article 1, paragraph 1, 1928 Havana
Convention).
30 Ibid., p. 279 (emphasis added). Even if the usual practice was for safe-conduct to be
requested and granted at once, the Court considered that this did not alter the legal situ-
ation.
31 Ibid., pp. 279–80. The Court had found the counter-claim admissible, being directly
connected with the subject matter of the proceedings, namely, the regularity of the asylum
granted.
32 Ibid., pp. 280–2.
 The asylum cases 177

regular legal proceedings: ‘In principle … asylum cannot be opposed to the

operation of justice.’33 The Convention did not protect political offenders
generally, for this would lead to ‘foreign interference of a particularly offen-
sive nature’.34 Given that the essential justification for asylum lay in the
‘imminence or persistence of a danger to the person of the refugee’,35 and
that over three months had passed before Haya de la Torre sought and was
granted asylum, Colombia had not discharged its burden of showing that the
case was urgent, when considered against ‘the objective existence of the
facts’.36
Among the dissenting judges, Judge Alvarez applied the same approach to
that of the ‘qualification’ issue: it was for the state of refuge to appreciate
whether or not there was urgency, and strict compliance with the letter of the
Havana Convention, ‘would be tantamount to a disregard of the nature of
asylum’.37 Judge Read paid detailed attention to the urgency question, but
also to the widespread practice of diplomatic asylum, citing numerous
instances involving some 244 individuals and at least 17 Latin American
States.38 He could find no occasion where a political offender had ever been
surrendered at the request of the territorial state, and no evidence to show
that diplomatic asylum was limited to occasions of pursuit by angry mobs; on
the contrary, asylum was freely granted during unsettled, post-revolutionary
conditions.39 It was unthinkable, he said, that in referring to ‘urgent cases’,
the drafters of the Havana Convention had intended to bring to an end an
institution based on ninety years of tradition.40 As he saw it, the essential
distinction was between political offenders and common criminals, and the
‘urgent cases’ qualification simply limited diplomatic asylum for political
offenders to times of political disturbance of a revolutionary character.41 In

33 Ibid., p. 284.
34 Ibid., p. 286. The view of the Court contrasts directly with that of Judge Alvarez who,
while emphasizing the ‘ex-territoriality’ of the premises in which asylum was granted and
taking account of Latin American practice, argued that, ‘asylum in no way constitutes an
intervention or a limitation of the sovereignty of the territorial State, but rather ... the legit-
imate exercise of a prerogative’: I.C.J., Dissenting Opinion of Judge Alvarez, Asylum Case
(Colombia v. Peru), p. 292.
35 Asylum Case (Colombia v. Peru), op. cit., p. 282.
36 Ibid., p. 287.
37 I.C.J., Dissenting Opinion of Judge Alvarez, Asylum Case (Colombia v. Peru), pp. 298–9.
Cf. Fitzmaurice, G. G., op. cit., 39–40, minimizing the differences between the Court and
the dissents.
38 Ibid., Dissenting Opinion of Judge Read, pp. 317, 328; also Dissenting Opinion of Judge
Caicedo Castilla, pp. 375–7; Ronning, op. cit., 66–96, 148–57, 187–213.
39 Ibid., Dissenting Opinion of Judge Read, p. 321: ‘The evidence shows that asylum was
granted, as a matter of course, to political offenders who were seeking to escape from ordi-
nary judicial proceedings under the laws of the territorial States.’
40 Ibid., p. 322.
41 Ibid., Convention on Asylum, Havana, 20 February 1928, OAS Off. Rec.
(OEA/SER.X/1), Treaty Series, No. 34326.
178 Guy S. Goodwin-Gill

an interesting, but undeveloped remark, he also referred to Peru’s submis-

sions: ‘In saying that “diplomatic asylum is based on a desire for
humanitarian protection in times of political disturbance”, the Government
of Peru was furnishing the key to the solution of the problem.’42

C. Impact and influence

Although much has been made of the Court’s pronouncements on custom,
evidence, and proof, little attention has been given, particularly more
recently, to what was said about diplomatic asylum and, directly and indi-
rectly, about asylum in general. Significantly, the Court first distanced its
analysis and reasoning from the ‘extra-territoriality’ of diplomatic premises,43
and instead emphasized asylum as a ‘state of protection’:

The grant of asylum is not an instantaneous act which terminates with

the admission, at a given moment, of a refugee to an embassy or a lega-
tion. Any grant of asylum results in, and in consequence logically
implies, a state of protection; the asylum is granted as long as the contin-
ued presence of the refugee in the embassy prolongs this protection.44

The Court’s reference also to ‘humanitarian grounds’45 echoes the ‘elemen-

tary considerations of humanity’, which it evoked in the Corfu Channel
Case.46 Fitzmaurice already noted this in 1950,47 as did O’Connell in 1970,48
and it has resonated in a line of later decisions.49 Secondly, as highlighted
above, the Court stressed that the ‘essential justification’ for asylum is the
‘imminence or persistence of a danger for the person of the refugee’,50 and
while asylum cannot be opposed to the operation of justice, it does protect

42 Ibid. (emphasis supplied).

43 The status of the premises in which asylum is granted nevertheless remains a relevant
consideration overall, however, and clearly constrains the options open to the territorial
state.
44 Asylum Case (Colombia v. Peru), op. cit., p. 281. Cf. ‘non-refoulement through time’, as
described in Goodwin-Gill, G. S. and McAdam, J., The Refugee in International Law,
Oxford: Oxford University Press, 3rd edn, 2007, 207–8, 343–5.
45 ‘It has not been disputed by the Parties that asylum may be granted on humanitarian
grounds in order to protect political offenders against the violent and disorderly action of
irresponsible sections of the population’: Asylum Case (Colombia v. Peru), op. cit., pp. 282–
3.
46 Corfu Channel Case (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949, p. 4.
47 Fitzmaurice, G. G., op. cit., 33–5.
48 O’Connell, D. P., International Law, 2nd edn, London: Stevens, 1970, 737–8.
49 For discussion, see Goodwin-Gill, G. S., ‘Europe: A place to seek, to be granted, and to
enjoy asylum?’, in Gortázar, C., Parra, M-C., Segaert, B. and Timmerman, C. (eds),
European Migration and Asylum Policies: Coherence or Contradiction?, Bruxelles: Bruylant,
2012, 33.
50 Asylum Case (Colombia v. Peru), op. cit., p. 282.
 The asylum cases 179

where ‘arbitrary action is substituted for the rule of law’, and ‘against any
measures of a manifestly extra-legal character’.51 In this way, the judgment
has helped to forge and strengthen an alternative, human rights-based
rationale for asylum, which derives from the various duties of the state to
provide protection to those at risk of relevant serious harm.52
Where diplomatic asylum is granted, the problem of what to do next can
be very real,53 and similar issues can also arise in territorial asylum. For exam-
ple, in cases where the asylee is accused of a crime of international concern
and may be liable to extradition: here, the possibility of local prosecution can
help to avoid return to persecution while maintaining the integrity of the
international justice system.54 Diplomatic asylum nevertheless adds a sharper
edge to an ongoing legal relationship between the two states;55 and the shel-
tering state’s non-exclusive competence raises near insurmountable obstacles
to a solution in purely legal terms. Ironically, it was only in its third judgment
that the Court appears to have recognized the normative quality of regional
practice, and to have accepted that, while the Havana Convention provided
for the surrender of common criminals, its silence on what to do with polit-
ical offenders ‘cannot be interpreted as imposing an obligation to surrender
the refugee’, even where asylum had been granted inconsistently with the
Convention, for this would be contrary to the spirit of Latin American tradi-
tion, which only an express provision could achieve.56 It is hardly surprising,
therefore, that the Court turned to regional practices and traditions of good
neighbourliness when it urged the parties to find the solution it could not

51 Ibid., p. 284.
52 Cf. B v Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344.
53 The cases of Haya de la Torre and, more recently, Julian Assange, clearly demonstrate the
practical problems. The Australian Wikileaks founder and editor entered the Ecuadorian
Embassy in London on 19 June 2012 and claimed diplomatic asylum, which was granted
on 16 August 2012: Neuman, W. and Ayala, M., ‘Ecuador Grants Asylum to Assange,
Defying Britain’, New York Times, 16 August 2012: www.nytimes.com/2012/08/17/
world/americas/ecuador-to-let-assange-stay-in-its-embassy.html (accessed 13 October
2015); BBC News Online, ‘Julian Assange: Ecuador grants Wikileaks founder asylum’, 16
August 2012: www.bbc.co.uk/news/uk-19281492 (accessed 13 October 2015). Over
three years later, the issue had still not been resolved when the police guard on the Embassy
was withdrawn in October 2015, by which time it had cost over £12 million: BBC News
Online, ‘Julian Assange: Police end guard at Wikileaks founder’s embassy refuge’, 12
October 2015: www.bbc.co.uk/news/uk-34508500 (accessed 13 October 2015).
54 Goodwin-Gill, G. S., ‘Crimes in International Law: Obligations Erga Omnes and the Duty
to Prosecute’, in Goodwin-Gill G. S. and Talmon, S. (eds), The Reality of International
Law: Essays in Honour of Ian Brownlie, Oxford: Clarendon Press, 1999, 199. See also,
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), I.C.J.
Reports 2012, p. 422, on possible limits to the right of the state to grant asylum to indi-
viduals accused of serious human rights violations.
55 O’Connell, D. P., op. cit., 736.
56 Haya de la Torre Case, op. cit., pp. 81–2; see also I.C.J., Dissenting Opinion of Judge
Alvarez, Asylum Case (Colombia v. Peru), p. 322.
180 Guy S. Goodwin-Gill

provide itself.57 However, the Court’s recognition of the principle of non-

return (non-refoulement) remains critically important to this day.
The impact of the litigation was soon felt. Just four years later, as Haya de
la Torre was about to leave the Colombian Embassy in Lima, Organization
of American States (OAS) member states concluded two new conventions:
one on territorial and the other on diplomatic asylum.58 The Territorial
Asylum Convention commences with general recognition of every state’s
right, ‘in the exercise of its sovereignty, to admit into its territory such
persons as it deems advisable’ (Article 1), and specifically provides that, ‘No
State is under the obligation to surrender to another State, or to expel from
its territory, persons persecuted for political reasons or offenses’ (Article 3).
The Diplomatic Asylum Convention draws a clearer line to the litigation.
Article 2 declares that, ‘Every State has the right to grant asylum, but it is
not obligated to do so or to state its reasons for refusing it.’ There then
follow a series of articles clearly intended to provide a corrective to the
Havana Convention, as interpreted by the International Court of Justice in
the Asylum Case. In particular, Article 4 provides that, ‘It shall rest with the
State granting asylum to determine the nature of the offense or the motives
for the persecution’; Article 6, that ‘urgent cases’ include those where the
individual is sought, either by mobs or the authorities themselves, and faces
the risk of deprivation of life or liberty; Article 7, that it shall rest with the
state granting asylum to determine the degree of urgency; and Article 12,
that once asylum has been granted, the asylum state may request that the
asylee be allowed to depart, ‘and the territorial State is under obligation to
grant immediately … the necessary guarantees … and the corresponding
safe-conduct.’59
Although treaty ratification may be patchy, the underlying premises have
been taken forward. During the 1950s and 1960s, asylum was extensively
discussed in the UN Commission on Human Rights, the Third Committee,
the Sixth Committee, and also, if briefly, in the International Law
Commission.60 Although it dealt initially with both diplomatic and territorial

57 Haya de la Torre Case, op. cit., p. 83; see also I.C.J., Dissenting Opinion of Judge Alvarez,
Asylum Case (Colombia v. Peru), pp. 293–4.
58 1954 Caracas Convention on Territorial Asylum: OAS Official Records, OEA/Ser.X/1;
OAS Treaty Series No. 19; 1954 Caracas Convention on Diplomatic Asylum: OAS Official
Records, OEA/Ser.X/1; OAS Treaty Series No. 18. Both treaties were adopted on 28
March 1954 and entered into force on 29 December 1954. Twelve states have ratified the
Convention on Territorial Asylum, and fourteen on Diplomatic Asylum. Interestingly,
Colombia signed the Diplomatic Asylum Convention on the day of adoption, but has not
ratified, while Peru signed in 1960, and ratified in 1962. Colombia signed the Territorial
Asylum Convention the same day, and ratified in 1968; Peru also signed on that day, but
has not ratified.
59 See also Articles 15 and 20, which emphasize the protection dimension.
60 For a summary of discussions, see Goodwin-Gill, G. S., ‘Introduction to the 1967 United
Nations Declaration on Territorial Asylum’, UN Audio-Visual Library of International
Law, Historic Archives, 2012: www.un.org/law/avl/ (accessed 13 October 2015).
 The asylum cases 181

asylum, the 1967 Declaration adopted by the General Assembly was

ultimately limited to the latter,61 but nonetheless endorsed the proposition
that, ‘It shall rest with the State granting asylum to evaluate the grounds for
the grant of asylum.’62 Subject to the emerging ordre public on international
crimes and crimes of international concern – such as terrorism – the basic
principle argued for in the Asylum Case is clearly and implicitly accepted
today in the practice of states.
Diplomatic asylum as a formal legal institution more or less clearly regu-
lated by rules may be regionally limited, but the practice still occurs from
time to time in other jurisdictions. The Asylum Case clarified its humanitar-
ian foundations, and as Fitzmaurice suggested, prepared the ground for a
general right, capable of being universalized.63 In that regard, Latin American
practice and tradition have played a no less formative role, even if states in
other regions remain hesitant and the classic clash of jurisdictions remains
unresolved. Lauterpacht noted the difficulties inherent in bringing asylum
within the confines of law and policy,64 and that one of the unfortunate
consequences of the Asylum Case (and of incidents since and elsewhere),
‘was that a person was exposed for a prolonged period to a condition of
uncertainty and suspense in a manner unacceptable to human dignity’.65
Today, countless refugees may have the ‘protection’ of territorial asylum, but
their situation remains precarious and characterized by extreme hardship;
they are in need of solutions that the law cannot as yet supply.

Bibliography
Alvarez, A., Le droit international nouveau, Paris: Pedone, 1959.
Barcía Trelles, C., ‘El derecho de asilo diplomático y el caso Haya de la Torre: Glosas
a una sentencia’, Revista española de derecho internacional 3, 1950, 753.
Bishop, W. W., ‘Judicial Decisions: Haya de la Torre Case (Colombia/Peru)’,
American Journal of International Law 45, 1951, 781.
Brownlie, I., Principles of Public International Law, Oxford: Clarendon Press, 1st
edn, 1966; 7th edn, Oxford: OUP, 2008.

61 UNGA res. 2312 (XXII), ‘Declaration on Territorial Asylum’, 14 December 1967

(adopted without a vote). In 1974, on an Australian initiative, the General Assembly
requested the Secretary-General to prepare and circulate a report on the practice of diplo-
matic asylum and invited member states to make known their views: UNGA res. 3321
(XXIX), 14 Dec. 1974. The report (UN doc. A/10139) confirmed the regional nature of
the practice; of twenty-five states which made known their views, only seven favoured draw-
ing up an international convention on the matter.
62 Article 1(3).
63 Fitzmaurice, G. G., op. cit., 34–5.
64 See also, Jully, L., op. cit., 57.
65 Lauterpacht, H., The Development of International Law, op.cit., 147. As Jully puts it, ‘Voilà
un asile qui rassemble fort à une prison!’, op. cit., 58, note 102.
182 Guy S. Goodwin-Gill

Combacau, J. and Sur, S., Droit international public, Paris: Montchrestien, 9th edn,
2010.
Crawford, J., Brownlie’s Principles of Public International Law, Oxford: OUP, 8th
edn, 2012.
Evans, A. E., ‘The Colombian-Peruvian Asylum Case: Termination of the Judicial
Phase’, American Journal of International Law 45, 1951, 755.
Fitzmaurice, G. G., ‘The Law and Procedure of the International Court of Justice:
General Principles and Substantive Law’, British Yearbook of International Law 27,
1950, 1.
Gonidec, P. F., ‘L’affaire du droit d’asile’, Revue Générale de Droit International
Public 55, 1951, 547.
Goodwin-Gill, G. S., ‘Europe: A place to seek, to be granted, and to enjoy asylum?’,
in Gortázar, C., Parra, M-C., Segaert, B. and Timmerman, C. (eds), European
Migration and Asylum Policies: Coherence or Contradiction? Bruxelles: Bruylant,
2012, 33.
Goodwin-Gill, G. S., ‘Crimes in International Law: Obligations Erga Omnes and the
Duty to Prosecute’, in Goodwin-Gill, G. S., and Talmon, S. (eds), The Reality of
International Law: Essays in Honour of Ian Brownlie, Oxford: Clarendon Press,
1999, 199.
Goodwin-Gill, G. S. and McAdam, J., The Refugee in International Law, Oxford:
OUP, 3rd edn, 2007.
Green, L. C., ‘International Court of Justice: Right of Asylum Case
(Colombia/Peru) ICJ Reports 1950, p. 266’, International Law Quarterly 4,
1951, 229.
Jennings, R. and Watts, A., Oppenheim’s International Law, London: Longmans; 9th
edn, 1992; Oxford: OUP, repr. 2008.
Jully, L., ‘L’asile diplomatique devant la Cour internationale de Justice’, Die Friedens-
Warte 51, 1951–3, 20.
Kolb, R., The International Court of Justice, Oxford: Hart Publications, 2013.
Lauterpacht, H., Oppenheim’s International Law, London: Longmans, 8th edn,
1955.
Lauterpacht, H., The Development of International Law by the International Court,
Cambridge: CUP, 1958.
Morgenstern, F., ‘Diplomatic Asylum’, Law Quarterly Review 67, 1951, 362.
O’Connell, D. P., International Law, London: Stevens, 2nd edn, 1970.
Ronning, C. N., Diplomatic Asylum – Legal Norms and Political Reality in Latin
American Relations, Leiden: Martinus Nijhoff, 1965.
Rosenne, S., The Law and Practice of the International Court of Justice, Leiden:
Martinus Nijhoff, 4th edn, 2006.
Shaw, M., International Law, Cambridge: CUP, 2nd edn, 1986; 6th edn,
Cambridge: CUP, 2008.
Van Essen, J. L. F., ‘Some Reflections on the Judgments of the International Court
of Justice in the Asylum and Haya de la Torre Cases’, International and
Comparative Law Quarterly 1, 1952, 533.
Verdross A. and Simma, B., Universelles Völkerrecht – Theorie und Praxis, Berlin:
Duncker und Humblot, 1976.
16 Avena and Other Mexican
Nationals (Mexico v. United
States of America), 2003 and
request for interpretation of the
judgment of 31 March 2004 in
the case concerning Avena and
Other Mexican Nationals
(Mexico v. United States of
America), 2008
Cesare P.R. Romano1

I Introduction
Between 1998 and 2008, the International Court of Justice (ICJ) heard a
trio of cases on the application of the 1963 Vienna Convention on Consular
Relations (VCCR),2 in the context of the arrest, trial and sentencing of
foreign nationals by the US: the Breard case brought in 1998 by Paraguay,3
the LaGrand case brought in 1999 by Germany,4 and the Avena case brought
in 2003 by Mexico.5
The Avena case presented the ICJ with the opportunity to clarify and
expand on points of law that it had previously made in the LaGrand case.
But, unlike the LaGrand case, it unleashed a torrent of litigation in the US,
resulting in rulings by the US Supreme Court that redefined the way the
US incorporates its international legal obligations into its domestic legal
system.

1 The author would like to thank Nadine Kheshen for her help in the research and editing
of this piece.
2 Vienna Convention on Consular Relations, 24 April 1963, 596 U.N.T.S. 261, entered into
force 19 March 1967.
3 Case concerning the Vienna Convention on Consular Relations (Paraguay v. United States
of America), Order of 10 November 1998, I.C.J. Reports 1998, p. 426.
4 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 466.
5 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J.
Reports 2004, p. 12.
184 Cesare P.R. Romano

This chapter focuses on Mexico’s reasons for taking the momentous step
of filing a case against the US, the consequences of this decision, both legal
and political, and the contribution that the Avena decision made to interna-
tional law.

II Background
The VCCR has long been one of the centrepieces of the international legal
architecture. To date, it has achieved quasi-universal acceptance, having been
ratified by 177 states.6 Yet, despite its importance, it rarely grabs headlines.
Only when it is violated do states realize how crucial compliance is to ensure
that the rights of their nationals abroad are respected, as well as the rights of
non-nationals under their jurisdiction.
The VCCR consists of 79 articles, most of which provide for the opera-
tion of consulates, the privileges and immunities of consular officials posted
to foreign countries, and the functions of consular agents. Consular officials
act as a cultural bridge for nationals who face foreign criminal procedure, by
providing translation, arranging legal representation, helping gather mitigat-
ing evidence, and hiring defence counsel.
These functions are regulated by Article 36 (1) of the VCCR, which
provides that ‘consular officers shall be free to communicate with nationals
of the sending State and to have access to them’ and nationals of the send-
ing state will, likewise, have the same right to communicate and access their
consular officers.7 If a national of a sending state is detained and the national
‘so requests, the competent authorities of the receiving State shall, without
delay, inform the consular post of the sending State.’8 The authorities of the
receiving state also have a responsibility to ‘inform the person concerned
without delay of his rights.’9 These rights include allowing a consular officer
to ‘visit a national of the sending State who is in prison, custody or deten-
tion, to converse and correspond with him and to arrange for his legal
representation.’10 Furthermore, while paragraph 2 states that these rights
‘shall be exercised in conformity with the laws and regulations of the receiv-
ing State,’ it maintains the exception that ‘said laws and regulations must
enable full effect to be given to the purposes for which the rights accorded
under this article are intended.’11
The US has, by a large margin, the highest number of detainees in the
world – almost 2.3 million – and approximately 5% are foreigners (thus,

6 United Nations Treaty Collection, status as at 9 August 2015. Available at:

https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III-6&
chapter=3&lang=en (accessed 1 June 2016).
7 Vienna Convention on Consular Relations, art. 36.1(a).
8 Ibid., art. 36.1(b).
9 Ibid.
10 Ibid., art. 36.1(c).
11 Ibid., art. 36. 2.
 Avena and Other Mexican Nationals 185

about 120,000).12 In theory, each of these should have been informed, either
during their arrest or arraignment, of their right to notify their consular
authorities. However, in a country as large as the US, with multiple levels of
law enforcement in each state, each with its own criminal justice system, as
well as a federal justice system, compliance with the requirements of Article
36 of the VCCR is far from universal and automatic. It should be no surprise
then, that over the years several states have objected to the occasional denial
of consular assistance to their nationals. In the late 1990s, Paraguay,
Germany and Mexico decided to challenge the non-compliance with the
VCCR of the US before the ICJ.
Mexico had the greatest interest in the issue and the highest stakes.
Because of the close ties with the US, the prominence of Mexican nationals
in the US territory, and the importance of their remittances to the Mexican
economy, Mexico considers treatment of its nationals, particularly when they
have been arrested, a priority of governmental concern. At the time of the
Avena case, there were about 10 million Mexican nationals living in the US.13
A good portion of the roughly 120,000 foreigners detained in US prisons
around that time were likely to be Mexican citizens. Mexico has more
consulates and consular officers in the US than any other state, with over
forty-five consulates and hundreds of consular officers trained, specifically, to
intervene on behalf of Mexican nationals.14
For years before taking the momentous step of filing a case before the ICJ,
Mexico had been contesting the non-compliance of the US with the VCCR
to no avail. Mexico closely observed when, in 1998, Paraguay brought a case
to the ICJ claiming that the US had violated the VCCR by not providing
Angel Breard, a Paraguayan national, the opportunity to benefit from
consular assistance. Eventually, Paraguay caved under diplomatic pressure
from the US and withdrew its application, preventing the ICJ from ruling on
the merits.15 However, the following year, Germany brought a similar case
after the denial of consular assistance to two German nationals (the LaGrand
brothers), who had been arrested, tried, and sentenced to death in Arizona.16
This time, the ICJ did rule on the merits and found the US in violation of

12 R. Walmsley, ‘World Prison Population List’, International Centre for Prison Studies, 9th
Ed., 2010. Available at: www.idcr.org.uk/wp-content/uploads/2010/09/WPPL-9-22.pdf
(accessed 1 June 2016).
13 J. Zong and J. Batalova, Frequently Requested Statistics on Immigrants and Immigration in
the United States, Migration Policy Institute (26 February 2015). Available at: www.migra-
tionpolicy.org/article/frequently-requested-statistics-immigrants-and-immigration-united
-states#MexicanImmigrants (accessed 1 June 2016).
14 C. Amirfar, ‘AALS Panel – Mexico v. U.S.A. (Avena) – Arguments of Mexico’, European
and International Law 5, 2004, 376.
15 Case concerning the Vienna Convention on Consular Relations (Paraguay v. United States
of America), Order of 10 November 1998, supra note 2.
16 LaGrand, I.C.J. Reports 2001, supra note 4, p. 466, para. 14.
186 Cesare P.R. Romano

both the VCCR and an order to stay the execution that it had issued while
the case was being decided on the merits.17

III The ICJ judgment in the Avena case

The ICJ ruling in the LaGrand case, coupled with the continuing non-
compliance by the US with the VCCR and the uniquely high stakes for
Mexican nationals, convinced Mexico to take the bull by the horns. On 9
January 2003, it instituted proceedings before the ICJ alleging violation of
all paragraphs and sub-paragraphs of Article 36 of the VCCR to the detri-
ment of 52 Mexican nationals who had been tried and were awaiting
execution in US prisons. Mexico also filed a request before the ICJ for the
indication of provisional measures asking the Court to request that the US,
inter alia, take ‘all measures necessary to ensure that no Mexican national be
executed.’18
Yet there were important differences between the facts of the LaGrand
and Avena cases that warranted Mexico’s departure from Germany’s script.
For instance, in the LaGrand case, the two brothers had been executed
before the ICJ could reach a decision on the merits, whereas, at the time of
the Avena proceedings, all Mexican nationals in question were still alive.
Thus, while Germany could only seek reparations and non-repetition,
Mexico insisted on restitution. As a result, Mexico built and expanded upon
the LaGrand script; it argued that the US had failed to provide meaningful
‘review and reconsideration’ of the conviction and sentencing by neglecting
to account for the violations of the VCCR, as required by the LaGrand deci-
sion.19
The ICJ took the LaGrand case as a point of departure for its reasoning
on the merits, too, and went further. Although the Court adopted provi-
sional measures to stay the execution of the detainees in both the LaGrand
and Avena cases, the wording of the Court’s order in the Avena case was
stronger than that of the LaGrand case. For example, in the Avena case, the
Court indicated that the US ‘shall’ – rather than ‘should’ – take necessary
measures to stay the execution of three Mexican nationals, whose execution
were imminent, pending the final judgment of the ICJ.20 This was an obvi-
ous reaction to the failure of the US to ensure that the Governor of Arizona
stayed the execution of the LaGrand brothers and a reminder that provi-
sional measures are binding orders. Indeed, if one was to look for a tangible
contribution from the LaGrand/Avena litigation to international law, this

17 Ibid., at para. 115.

18 Avena and Other Mexican Nationals (Mexico v. United States of America), Order of 5
February 2003, I.C.J. Reports 2003, p. 77, para. 18.
19 LaGrand, I.C.J. Reports 2001, supra note 4, p. 466, para. 128(7).
20 Avena and Other Mexican Nationals, Order of 5 February 2003, supra note 18, p. 77, para.
59(a).
 Avena and Other Mexican Nationals 187

would be the resolution of the debate on whether ICJ provisional measures

are binding.
The decision of the ICJ in the Avena case has given rise to a very large
number of scholarly commentaries, and we defer to those for a detailed
account. Here, it suffices to say that the main points of contention in the
Avena case were the obligation to provide consular information ‘without
delay’ in accordance with VCCR Article 36 (1)(b) and the failure to provide
meaningful ‘review and reconsideration’ of the conviction and sentencing,
given the violation. The Court declared that the term ‘without delay’ does
not necessarily mean ‘immediately upon arrest’, rather, the duty to provide
consular information exists once there are grounds to believe that the indi-
vidual being detained is a foreign national.21 Accordingly, the Court found
that, with the exception of one detainee, the US had violated its obligation
to provide consular notification ‘without delay’.22 The Court further found
that, in 49 cases, the US had violated its obligations, to enable Mexican
consular officers to communicate with, have access to, and visit their nation-
als, and in 34 cases, the US had violated its obligation to enable Mexican
consular officers to arrange for legal representation of their nationals.23
Mexico claimed that the US had also violated Article 36(2) by failing to
provide ‘meaningful and effective review and reconsideration of the convic-
tions and sentences’.24 The US argued that in the American legal system
courts are barred from doing so by the so-called ‘procedural default rule’,
which is a doctrine applied by American federal courts that requires a state
prisoner seeking a writ of habeas corpus in federal court to have first presented
his or her federal law argument to the state courts in compliance with state
procedural rules.25 Failure to do so bars any subsequent attempt to present
the same argument to the federal courts on collateral review. This argument
led the Court to take a jab at the US, by observing that the procedural
default rule had not been revised despite the ICJ’s judgment in the LaGrand
case, which called attention to the problems regarding the application of this
rule caused for defendants relying on violations of the VCCR in appeal
proceedings.26
However, the Court also gave the US a break by holding that, although
Article 36(2) of the VCCR had been violated by the US in the cases of three
Mexican nationals, judicial re-examination was still possible in the other 49
cases.27 Accordingly, the Court found that Mexico’s request for restitutio in

21 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, supra
note 5, p. 12, para. 85–8.
22 Ibid., at para. 89.
23 Ibid., at para. 90–91.
24 Ibid., at para. 107.
25 Ibid., at para. 110.
26 Ibid., at para. 112–113.
27 Ibid., at para. 20.
188 Cesare P.R. Romano

integrum – meaning partial or total annulment of the conviction and

sentencing of the state court – would not be an appropriate remedy; rather,
adequate reparations would be a ‘review and reconsideration’ of the convic-
tions and sentencing of the Mexican nationals by courts in the US.28 The
Court also indicated that the methods employed for ‘review and reconsider-
ation’ should be left to the US to determine, so long as the violations of
rights guaranteed under the VCCR were taken into account.29 The Court
found no evidence indicating a ‘regular and continuing’ pattern of breaches
by the US of the VCCR, and, in fact, it acknowledged the efforts undertaken
by the US to encourage implementation of its obligations under the VCCR,
and considered this as a demonstration of commitment by the US in satis-
faction of Mexico’s request.30
Finally, fully aware of its role in the architecture of the international
community and the precedential value of its judgments, the Court observed
that, while the Avena case concerned only the 52 Mexican nationals in ques-
tion, its judgments could not be taken to imply that the Court’s conclusions
would not be extended to other foreign nationals finding themselves in simi-
lar situations in the US.31 This statement not only put the US on notice as to
how the Court would rule should it be seized for the fourth time by another
state raising these same violations, but it also signalled to the rest of the
world, both that the Court considers itself the ultimate judge for the inter-
national community, and that its rulings extend beyond the specific case and
become part of the international legal regime.
Other than that and the clarification of what ‘without delay’ means under
the VCCR, the Avena decision did not add much substance to the body of
international law regulating consular relations. The paradigm shift had
already happened with LaGrand. The Avena case was, as it has been poeti-
cally framed, ‘a fight for the soul of LaGrand.’32 However, the Avena case
will go down in history as a turning point in the discussions of how interna-
tional law and domestic law interface, and what place international law has
within the US legal system.

IV The legal fallout in the US and the aftermath

The ICJ issued its ruling on 31 March 2004. Within a few days, both the US
government and the attorneys representing the Mexican nationals took steps
to ensure implementation of the ICJ decision. The ICJ had asked US courts,
both state and federal, to ‘review and reconsider’ the convictions and
sentences of the Mexican nationals who had not been provided consular

28 Ibid., at para. 123 and 148.

29 Ibid., at para. 122.
30 Ibid.
31 Avena and Other Mexican Nationals, Judgment, supra note 5, p. 12, para. 151.
32 C. Amirfar, op. cit., p. 378.
 Avena and Other Mexican Nationals 189

assistance without delay. A judicial melee ensued, one that left a major casu-
alty on the battlefield: the reputation of the US as an international
law-abiding nation.
The first case was that of Osvaldo Torres, one of the individuals named in
the Avena case. His attorneys filed an application for post-conviction relief.
On 13 May 2004, the Oklahoma Court of Criminal Appeals decided to grant
an indefinite stay of execution and remanded an evidentiary hearing to assess
whether Torres had suffered prejudice by the violations of his consular
rights.33 On the same day, and after having been requested to do so by the
US Department of State, the Governor of Oklahoma decided to grant
clemency and commute the death sentence to life without parole.34 That
rendered subsequent litigation of the case moot and it was accordingly
dismissed by the Oklahoma Court of Criminal Appeals.35
In February 2005, President George W. Bush attempted to ensure the
compliance of state courts with the ICJ decision by issuing a memorandum
for the Attorney General ‘determining that the US will discharge its interna-
tional obligations under the decision of the International Court of Justice …
by having State courts give effect to the decision in accordance with the
general principles of comity in cases filed against 51 Mexican nationals
addressed in that decision.’36 While the US Government was taking steps to
ensure compliance with the ICJ ruling, it also decided to shield itself from
future VCCR litigation before the ICJ by formally withdrawing from the
Optional Protocol to the VCCR concerning the Compulsory Settlement of
Disputes, which had been the basis of the ICJ jurisdiction in the Breard,
LaGrand, and Avena cases.37
Inevitably, the US Supreme Court was bound to weigh in on the issue,
which it did in several rounds commencing with the Sanchez-Llamas v.
Oregon case.38 Moises Sanchez-Llamas, a Mexican national, had been
convicted of attempted murder in Oregon. Mario Bustillo, a Honduran
national, had been convicted of murder in Virginia. Both had not been
sentenced to death, but to lengthy detention periods, and in neither case had
the detainees’ consulates been informed. Both Sanchez-Llamas and Bustillo
filed habeas petitions arguing that their right to consular notification had
been violated. However, the courts in Oregon and Virginia both ruled that,
because these claims had not been argued at the trial court level, they were

33 Torres v. State, No. PCD-04-442, (Okla. Crim. App. May 13, 2004).
34 Torres v. State, 2005 OK CR 17, para. 2, 120 P.3d 1184, 1186.
35 Ibid.
36 Memorandum for the Attorney General from the President of the United States of America
on Compliance with the Decision of the ICJ in Avena (28 February 2005).
37 S. Charnovitz, ‘Correcting America’s Continuing Failure to Comply with the Avena
Judgment’, The American Journal of International Law 106, 2012, 579.
38 Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006).
190 Cesare P.R. Romano

procedurally barred. The two cases were then consolidated and brought
before the US Supreme Court.39
On 28 June 2006, the Supreme Court decided that the ICJ’s rulings in
LaGrand and Avena were not conclusive for courts in the US: faced with the
interpretation of an international agreement by an international court, all
American courts needed to do was to give the decision ‘respectful consider-
ation’, but by no means were they bound by it.40 The Supreme Court also
found that state courts could admit evidence against defendants even if the
evidence was obtained in violation of the VCCR.41 Article 36 claims, if not
timely brought, could be procedurally barred by state procedural default
rules.42 Finally, the ICJ’s interpretation of Article 36 of the VCCR, requiring
that the rule of procedural default be set aside, was inconsistent with the
adversarial nature of the American criminal justice system, so the US could
not have intended to accept that interpretation when it negotiated and rati-
fied the VCCR.43 However, at this time the Supreme Court did not rule as
to whether Article 36 created individual rights that require honouring in
state criminal proceedings.44
Meanwhile, the case of one of the individuals named in Avena, José
Ernesto Medellin Rojas, was pending before the Fifth Circuit Court. After
the ICJ handed down its decision in Avena, the Fifth Circuit Court rejected
the request of Medellin’s attorneys for revision of his case, holding that it
could not overrule the Supreme Court’s Sanchez-Llamas finding that the
ICJ’s rulings have no binding effect on courts in the US, and adding that
Article 36 of the VCCR does not create individually enforceable rights.45
Medellin asked Texas’ courts to implement the memorandum issued by
President Bush.46 On 15 November 2006, the Texas Court of Criminal
Appeals found that it was not bound by the memorandum as the President
had no constitutional authority to order state courts to follow a decision of
the ICJ.47 The case was then referred to the US Supreme Court, which, by a
vote of six to three, upheld the ruling, finding that neither the ICJ judgment
in Avena nor the memorandum constituted directly enforceable federal law.48
While the Supreme Court acknowledged that the Avena judgment was bind-
ing as a matter of international law,49 it found, nonetheless, that as a matter

39 State v. Sanchez-Llamas, 338 Or. 267, 108 P.3d 573 (2005); Bustillo v. Johnson, 546 U.S.
1002 (2005) opinion after grant of cert. sub nom. Sanchez-Llamas v. Oregon, 548 U.S. 331
(2006).
40 Sanchez-Llamas v. Oregon, 548 U.S. 331, 333.
41 Ibid., at 350.
42 Ibid., at 359.
43 Ibid., at 334.
44 Ibid., at 342.
45 Medellin v. Dretke, 371 F.3d 270, 280 (5th Cir. 2004).
46 Ibid., at 663.
47 Ex parte Medellin, 223 S.W.3d 315, 335 (Tex. Crim. App. 2006).
48 Ibid., at 518 and 532.
49 Ibid., at 535.
 Avena and Other Mexican Nationals 191

of US domestic law, a treaty has no domestic effect unless Congress gave it

such force, or it is self-executing.50
Article 94(1) of the UN Charter obligates each member of the United
Nations ‘to comply with the decision of the International Court of Justice in
any case to which it is a party.’ To add insult to injury, the US Supreme
Court excused the US of this obligation by finding that Article 94(1) was
neither self-executing nor had Congress implemented legislation to give ICJ
decisions effect in US courts.51 By issuing the memorandum President Bush
had overstepped the limits of his powers, encroached on the prerogatives of
Congress, and the rights of states of the Union.52 The Court interpreted
Article 94 of the UN Charter as a commitment of the US to ensure imple-
mentation, but one not intended to vest ICJ decisions with immediate legal
effect in domestic courts. The Court based its finding on the fact that Article
94(2) contains a mechanism to ensure compliance with decisions of the ICJ:
referral to the UN Security Council. The US Supreme Court conveniently
glossed over the fact that self-referral to the Security Council by the US
Government would be absurd, and referral by another state, such as Mexico,
would be blocked by US veto power.
Mexico made a last-ditch effort to stop the execution of Medellin and four
other nationals by returning to the ICJ with a request for interpretation of
the Avena ruling (eventually rejected by the Court), and new provisional
measures.53 It asked the Court to request that the US undertake all necessary
measures to ensure that the five nationals were not executed, and that the US
inform the Court of all measures taken to that effect.54 On 16 July 2008, the
ICJ found that it had prima facie jurisdiction to adopt the provisional meas-
ures requested, and that there was enough urgency and risk of irreparable
harm to warrant their adoption.55 The order put the US Government
between the proverbial rock and a hard place. On the one hand, it faced an
order from an increasingly irritated ICJ, peeved by the repeated lack of
compliance with its orders and decisions, and on the other, the Supreme
Court’s Medellin judgment had emasculated the White House, denying it a
legal basis to request governors to stay executions. All the executive branch
could do was appeal to state governments to graciously agree to stay execu-
tions. To add a further ironic twist to an already grotesque imbroglio, it is
worth recalling that President George W. Bush had been governor of Texas
before Governor Rick Perry, and he himself had refused to stay the execution

50 Ibid., at 505.
51 Ibid., at 508.
52 Ibid., at 528.
53 Request for interpretation of the Judgment of 31 March 2004 in the case concerning
Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United
States of America), Provisional Measures, Order of 16 July 2008, I.C.J. Reports 2008, p. 311,
para. 5–6.
54 Ibid., at para. 13.
55 Ibid., at para. 73–74.
192 Cesare P.R. Romano

of Mexicans who had not benefitted from consular assistance. Likewise,

Governor Perry rejected calls from Mexico and President Bush. José
Medellin was executed on 5 August 2008.
The decision of the ICJ on the Request of Interpretation of the Avena
ruling, coupled with the withdrawal of the US from the Optional Protocol
to the VCCR, barred any subsequent litigation of the dispute before the ICJ.
However, the tussle between the executive, legislative, and judiciary
branches, and between the federal government and state authorities, contin-
ued.
President Barack Obama was sworn in on 20 January 2009, the day after
the ICJ decision. He came to power on a promise of radical departure from
the policies of the Bush administration and with a broad mandate from the
American electorate to effect change. In the judgment interpreting Avena,
the ICJ had left the US ‘[a] choice of means … in the implementation of its
obligation and, failing success within a reasonable period of time through the
means chosen, it must rapidly turn to alternative effective means of attaining
that result.’56 Observers of the VCCR mix-up would have bet on the Obama
administration to seize the moment to seek legislation from Congress to
resolve the problem once and for all. However, facing a financial crisis of
unprecedented magnitude, and entangled in two costly and bloody wars, the
White House did not recognize this issue as a high priority. As a result, the
problem dragged on.
In June 2011, Senator Patrick Leahy (D- Vermont), the Chairman of the
Senate Judicial Committee, introduced legislation regarding US compliance
with its obligations under the VCCR.57 The Consular Notification
Compliance Act intended to give jurisdiction to federal courts to review the
cases of foreign nationals on death row in the US who had not received
consular assistance as required.58 It included those individuals named in the
Avena case, who had not yet been executed, as well as future similar cases.
But, while Leahy’s bill languished in the Senate, the legal battle to stop
executions raged on. On 7 July 2011, the US Supreme Court handed down
another ruling in the case of Humberto Leal Garcia, a Mexican national who
had not been given consular assistance and who had been sentenced to
death. Leal claimed that his conviction had been vitiated by a violation of the
VCCR.59 Leal’s attorneys, as well as the US Government, appearing as
amicus curiae, asked the Supreme Court to stay the execution so that
Congress could have the time to consider Leahy’s bill.60 In a 5 to 4 decision,
the Court denied Leal’s application for stay of execution.61 It stood fast to its

56 Ibid., at para. 47.

57 Charnovitz, op. cit. n. 41, p. 577.
58 Ibid.
59 Garcia v. Texas, 131 S. Ct. 2866, 2867 (2011).
60 Ibid.
61 Ibid., at 2868.
 Avena and Other Mexican Nationals 193

Medellin ruling that international legal obligations are not binding unless
Congress enacts them in a statute. Expressing scepticism that such legislation
would ever be enacted, it dryly observed that its role is ‘ruling with the law
at present, not what it might become in the future.’62 Despite calls to Texas
from the President, the State Department, and Mexico, all asking for a last-
minute reprieve, Leal was duly executed within just a few hours of the
Supreme Court’s ruling.
Finally, after years of wrangling, a first step was taken towards ensuring
proper implementation of the VCCR in 2014 when the US Supreme Court
issued an amendment to the Federal Rules of Criminal Procedure. Since 1
December 2014, under Title II, Rule 5 (d) ‘If the defendant is charged with
a felony, the judge must inform the defendant of the following: (F) that a
defendant who is not a US citizen may request that an attorney for the
government or a federal law enforcement official notify a consular officer
from the defendant’s country of nationality that the defendant has been
arrested — but that even without the defendant’s request, a treaty or other
international agreement may require consular notification.’63 As a result,
notification must be provided to any defendant at their initial appearance,
without attempting to determine the defendant’s citizenship.64
Whether Article 36 of the VCCR creates individual rights that may be
invoked in judicial proceedings, and what, if any, remedy may exist for their
violation, remains an open question as far as the US legal system is
concerned.65 The amendment issued by the Supreme Court applies only to
federal courts, while the various states of the Union approach the matter
differently. Indeed, one of the consequences of the Medellin and Leal Garcia
decisions by the US Supreme Court is that ‘the United States is no longer
one nation when it comes to honouring consular commitments because the
rights received by a foreign national often depend on the state in which the
individual is apprehended.’66 The states of the Union most resistant to the
reach of the VCCR happen to also be retentionist on capital punishment.
Furthermore, they are predominantly located in the south, where most
Mexican nationals tend to live. It is clear that Mexico has still a long way to

62 Ibid., at 2867–8; Medellın I, 552 U.S. at 523–24.

63 Fed. R. Crim. P. 5.
64 Ibid., see Committee Notes on Rules-2014 Amendment.
65 Ibid.
66 Charnovitz, op. cit. n. 41, p. 575. Charnovitz cites, as example, the Supreme Court of
Massachusetts, which, in 2011, held that if an alien did not receive the notification requi-
red by Article 36 of the Vienna Convention, a challenge to the conviction may be made in
a motion for a new trial. In so holding, the court ‘acknowledge[d] and accept[ed] the
conclusion of the ICJ regarding the obligation that art. 36 creates when clear violations of
its notice protocols have been established, that is, to provide some process by which the
soundness of a subsequent conviction can be reviewed in light of the violation.’
Commonwealth v. Gautreaux, 458 Mass. 741, 751 (2011).
194 Cesare P.R. Romano

go before it can claim it obtained its desired outcome throughout the course
of this protracted legal struggle.
As it has been aptly remarked, ‘[w]e have always known about the possi-
bility that a [State of the Union] could cause a US treaty violation by
refusing to comply with America’s international obligations. What is new
about the Avena affair is that such misbehaviour can persist even in the face
of an ICJ judgment against the United States. As a result, the reputation of
the United States for being a law-abiding nation has been undermined.’67
Eight years after the Medellin ruling, the Supreme Court remains
unswayable. Congress, rather than the President or the federal judiciary, has
the role of effectuating compliance with the ICJ when states’ laws or courts
place the US in violation of a treaty. Considering how divided and ineffec-
tive the US Congress has been since the beginning of the 2000s, it is unlikely
that the international and constitutional crisis triggered by the Avena case
and cases that succeeded it will be resolved any time soon.

Bibliography
Amirfar, Catherine, ‘AALS Panel – Mexico v. U.S.A. (Avena) – Arguments of
Mexico,’ European and International Law 5, 2004, 376.
Bradley, Curtis A., ‘Sanchez-Llamas v. Oregon – U.S. Supreme Court Decision on
the Effect of Procedural Default on the Availability of Remedies for Violation of
the Vienna Convention on Consular Relations, in Light of the ICJ Opinion in
Avena, and on Suppression of Evidence as a Possible Remedy,’ American Journal
of International Law 100, 2006, 882.
Charnovitz, Steve, ‘Correcting America’s Continuing Failure to Comply with the
Avena Judgment,’ American Journal of International Law 106, 2012, 572.
Olabuenga, Pablo Arrocha, ‘Caso Medellín vs. Texas: comentarios al fallo de la
Suprema Corte de los Estados Unidos así como a la solicitud de interpretación del
fallo Avena del 31 marzo de 2004, presentada a la Corte Internacional de Justicia
por México en junio de 2008’, Anuario mexicano de derecho internacional 9,
2009, 677–705.

67 Charnovitz, op. cit. n. 41, p. 576.

17 Nottebohm (Liechtenstein v.
Guatemala), 1951
Alfred M. Boll 1

The Nottebohm Case (Liechtenstein v. Guatemala)2 involved issues related to

a state’s right to attribute its nationality by naturalization, the relationship
between nationality in municipal and international law, and a state’s obliga-
tion to recognize another state’s attribution of nationality and the right of
diplomatic protection and international claims. The majority held
Liechtenstein’s application inadmissible as Friedrich Nottebohm could not
be considered its national for the purposes of international law, preventing
the International Court of Justice (hereinafter ‘ICJ’ or ‘Court’) from consid-
ering the case’s merits and whether Guatemala had committed wrongful acts
against Liechtenstein and Nottebohm.
The case is perhaps best known for the criticism that has been levied
against the judgment. Most authors draw its relevance narrowly and qualify
its significance as limited due to what has been called ‘unconvincing’ reason-
ing.3 Weis calls the case’s circumstances ‘quite exceptional’, appending the
adage ‘bad cases make bad law’.4 The Court made several sweeping, arguably
questionable, pronouncements on the nature of nationality and naturaliza-
tion, and the case is, however, still frequently cited by authors as indicative
of broad rules of international law with respect to nationality.5 Egües, for

1 The author would like to thank Joan Sherer of the State Department’s Ralph J. Bunche
Library and Lisa Chiapputo, University of Helsinki, for their assistance. The views expres-
sed herein are the author’s and do not necessarily represent those of his employer.
2 Nottebohm Case (Liechtenstein v. Guatemala) (Second Phase), Judgment, I.C.J. Reports
1955. During the case’s first phase the Court had held that it was entitled to hear the case,
Guatemala having argued the Court’s jurisdiction had expired. Nottebohm Case
(Liechtenstein v Guatemala) (Preliminary Objections), I.C.J. Reports 1953.
3 O. Dörr, ‘Nottebohm case’, in Max Planck Encyclopedia of Public International Law,
Heidelberg: Max Planck Foundation for International Peace and the Rule of Law, 2015.
For a list of critical commentary, see J. Kunz, ‘The Nottebohm judgment’, American
Journal of International Law 54, 1960, 537–8, note 2.
4 Weis, P., Nationality and Statelessness in International Law, Alphen aan den Rijn: Sijthoff
& Noordhoff, 1979, p. 180.
5 Although Sloane’s characterization of the case as having become ‘a kind of doctrinal
mantra’ appears overstated. R. Sloane, ‘Breaking the genuine link: The contemporary inter-
national regulation of nationality’, Harvard International Law Journal 50, 2009, 3–4.
196 Alfred M. Boll

example, cites Nottebohm’s definition of nationality to defend Argentina’s

attribution of nationality by exercise of option to children born abroad of
Argentine parents.6 In Peru, press reports cited the case in relation to former
President Alberto Fujimori’s Peruvian nationality following his flight to
Japan in 2000 amidst allegations of corruption and human rights violations.7
Aleinikoff and Klusmeyer argue that ‘the selling of nationality unquestion-
ably cheapens its value as a form of allegiance’, and oppose the practice on
the basis that:

the emerging consensus in international law reflected in the Nottebohm

case suggests that a substantial connection should tie the individual to
the state of which he or she is a national. Nationality should not become
a commodity that individuals can purchase to further their business or
personal interests.8

Parts of the judgment related to states’ right to attribute their nationality are
broadly approved of, as well as the distinction the Court drew between
nationality on the planes of municipal and international law.9 Whether
Nottebohm can in fact be said to reflect an emerging consensus in international
law that individuals should have a substantial connection to their states of
nationality as postulated by Aleinikoff and Klusmeyer is, however, doubtful.10
The case is often cited and confused as dealing with issues of multiple
nationality, although it does not. This is because the Court applied a test that
is commonly used by governments and courts in cases involving multiple
nationality, that of genuine or effective nationality, to facts involving some-
one with only one nationality. An example of such confusion is the Brazilian
Supreme Federal Court’s analysis citing Nottebohm in denying a petition in
favour of Andréa Ciaccio in 2004, a Brazilian–Italian dual national.11

6 A. Egües, ‘El principio de la “nacionalidad natural”’, La Ley C, 1990, 706.

7 C. Romero, Alberto Fujimori es peruano y no japonés, Lima: La Republica, 20 June 2001.
Online. Available http://larepublica.pe/20-06-2001/alberto-fujimori-es-peruano-y-no-
japones (accessed 1 October 2015).
8 T. Aleinikoff and D. Klusmeyer, ‘Plural nationality: facing the future in a migratory world’,
in T. Aleinikoff and D. Klusmeyer, (eds), Citizenship today. Global perspectives and practices,
Washington, DC: Carnegie Endowment for International Peace, 2001, p. 84. See also R.
Koslowski, ‘Challenges of international cooperation in a world of increasing dual nationa-
lity’, in D. Martin and K. Hailbronner (eds), Rights and duties of dual nationals. Evolution
and prospects, The Hague: Kluwer, 2003, pp. 157–82.
9 Dörr, op. cit.
10 Ibid. See also Weis, op. cit., pp. 178–80; A. Randelzhofer, ‘Nationality’, in R. Bernhardt
(ed.), Encyclopedia of Public International Law 8, Amsterdam: Elsevier, 1985, p. 421.
11 Supremo Tribunal Federal, ‘Arquivado HC de ítalo–brasileiro’, Brasilia: 26 August 2004.
Online. Available www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=
63327&caixaBusca=N (accessed 25 August 2015).
 Nottebohm (Liechtenstein v. Guatemala), 1951 197

I The background and circumstances of the case

Nottebohm, a German national by birth in 1881, went to Guatemala when
he was about 24 years old to join his brothers’ businesses in trade, banking,
and plantations.12 The business prospered and Nottebohm became head of
the firm in 1937. He lived in Guatemala as a permanent resident German
national for 34 years, occasionally traveling to Germany on vacation, includ-
ing to Liechtenstein to visit a brother who lived there and had become a
national. In 1939, before the outbreak of the Second World War, he travelled
to Liechtenstein where he acquired its nationality by naturalization, thereby
losing his German nationality under German law. He returned to Guatemala
in January of 1940 on a Liechtenstein passport.
Guatemala declared its neutrality but shortly thereafter joined the allies,
declaring war on Germany on 11 December 1941. Nottebohm was arrested
as an enemy alien in 1943, transferred to a US military base, and subse-
quently interned in the US. Buys recounts the history of what she calls the
US-Latin American Detention Program under which various Latin American
countries and the US cooperated to deport over 4,000 German nationals or
persons of German ancestry to the US and intern them during the war, for
security, economic, and other reasons.13
According to press reports, Nottebohm’s assets were estimated at
US$1.5 million,14 or some US$20.6 million today.15 During his detention,
Guatemala used Nottebohm’s status as an enemy alien to take custody of
his property. His company’s assets in the US were also blocked. The US
Government later concluded it did not have credible evidence of
Nottebohm’s alleged Nazi sympathies or activities, and released him in
1946.16 When Guatemala refused him permission to return, he went to
Liechtenstein. In 1950, the US Government settled a civil suit brought by
the Nottebohms, returning about half the value of what it had seized.17
Guatemala, however, kept his property, although it returned 16 coffee
plantations to Nottebohm’s family in 1962 after his death.18 In 1951,
Liechtenstein brought suit against Guatemala in the ICJ for the purport-
edly illegal confiscation of its national’s property, and the treatment he
suffered.

12 Nottebohm Case, op. cit. p. 13.

13 C. Buys, ‘Nottebohm’s nightmare: Have we exorcised the ghosts of WWII detention
programs or do they still haunt Guantanamo?’, Chicago-Kent Journal of International and
Comparative Law 11, 2011, 15.
14 ‘World Court hears war seizure case’, New York Times, 11 February 1955, 9.
15 United States Department of Labor, Bureau of Labor Statistics, CPI Inflation Calculator.
Online. Available www.bls.gov/data/inflation_calculator.htm (accessed 4 October 2015).
16 Buys, op. cit., p. 11.
17 Ibid., p. 13.
18 Ibid., p. 14.
198 Alfred M. Boll

Liechtenstein claimed reparations for Nottebohm’s arrest, detention,

expulsion, non-readmission, and retention of his property without compen-
sation. It asked the Court to declare that its naturalization of Nottebohm
was not contrary to international law, and that its claim on Nottebohm’s
behalf was admissible.19 Guatemala argued that Nottebohm’s acquisition of
Liechtenstein nationality had not accorded with that country’s municipal
laws; his naturalization had not been in accordance with general principles of
law on nationality; and that his intent in acquiring Liechtenstein nationality
had been to obtain the status of a neutral, not to establish a durable link with
Liechtenstein and to break his ties to Germany, and thus fraudulent.20 The
conditions of Nottebohm’s naturalization in Liechtenstein included swearing
an oath of allegiance, and payment of a substantial fee and an annual tax,
including a security deposit. A provision was applied that waived the require-
ment of at least three years’ previous residence. Nottebohm never resided
permanently in Liechtenstein before his return to Guatemala in 1940, and
did not spend any substantial amount of time there. Most of his property was
confiscated in 1949 or later, after he had lived permanently in Liechtenstein
for some three years.

II The judgment
Eleven of the Court’s 14 judges held that Liechtenstein’s claim was inad-
missible, ruling that Guatemala was not obligated to recognize Nottebohm’s
Liechtenstein nationality given the circumstances under which it had been
granted, and that as a consequence Liechtenstein was not entitled to extend
its protection vis-à-vis Guatemala.

A. States’ right to attribute their nationality

The Court first rejected arguments that Guatemala had recognized
Liechtenstein’s naturalization of Nottebohm and thus should be estopped
from arguing it was invalid. Guatemala had issued Nottebohm a visa in his
Liechtenstein passport; the Guatemalan Ministry of External Affairs had
approved Nottebohm’s request that his nationality be amended in the
Register of Aliens and in his identity document; the Guatemalan Civil
Registry had issued him a certificate confirming the change.21 The Court
rejected these arguments as related to control of aliens rather than recogni-
tion of nationality.22
The Court then proceeded to issue its first sweeping pronouncement on
nationality, related to states’ right to attribute their nationality:

19 Nottebohm Case, op. cit., pp. 6–9 and 16.

20 Ibid., p. 11.
21 Ibid., p. 17.
22 Ibid., p. 19.
 Nottebohm (Liechtenstein v. Guatemala), 1951 199

It is for Liechtenstein, as it is for every sovereign State, to settle by its

own legislation the rules relating to the acquisition of its nationality, and
to confer that nationality by naturalisation granted by its own organs in
accordance with that legislation.23

It then qualifies this statement by saying ‘It is not necessary to determine

whether international law imposes any limitations on its freedom of decision
in this domain.’24 The Court then points out that nationality’s most impor-
tant and relevant effects are purely domestic in nature, identifying which
individuals enjoy rights and are bound by obligations under municipal law.
The Court thus both appears to reject Guatemala’s argument that
Nottebohm’s naturalization was invalid under general principles of law, while
holding open the possibility that international law poses limits on states’ free-
dom in the matter. Although Weis interprets this as an explicit refusal to
consider the validity of Nottebohm’s naturalization according to the laws of
Liechtenstein, the wording does not indicate the naturalization was invalid
domestically.25 In that sense it is doubtful that the ruling can be cited for
arguments that naturalization practices such as Liechtenstein’s at the time are
per se invalid. This affects a considerable number of states, whose conditions
for naturalization fall along a wide spectrum.26

B. Nationality in municipal and international law

Having accepted Liechtenstein’s presentation of Nottebohm as a national by
naturalization, the Court then addressed whether this entitled Liechtenstein
to exercise diplomatic protection with respect to Guatemala. Here, its hold-
ing was unambiguous. Nationality’s effects on the international plane
depend on international law, not municipal law.

International practice provides many examples of acts performed by

States in the exercise of their domestic jurisdiction which do not neces-
sarily or automatically have international effect, which are not necessarily
and automatically binding on other States or which are binding on them
only subject to certain conditions.27

23 Ibid., p. 20.
24 Ibid., p. 20.
25 Weis, op. cit. p. 179.
26 For various examples, see Kälin, C. The global residence and citizenship handbook, Zürich:
Ideos, 2011. Koslowski warns that many such practices amount to a ‘commodification’ of
citizenship. Koslowski, op. cit., p. 174. On the question whether international law imposes
limits on states’ regulation of nationality see Donner, R., The regulation of nationality in
international law, Irvington-on-Hudson: Transnational Publishers, 1994, pp. 119–20.
27 Nottebohm Case, op. cit., p. 21.
200 Alfred M. Boll

The Court also recalled the specific context of diplomatic protection and
international claims as measures related to states’ rights vis-à-vis one
another.28

C. The application of the principle of the genuine or effective link

The Court then turned to the central issue of how to determine ‘whether the
naturalisation conferred on Nottebohm can be successfully invoked against
Guatemala’.29 The Court cites the principles applied by international arbiters
confronted with a nationality claim by one state that is contested by another,
to assess whether the nationality in question gives rise to an international
obligation, citing one of the standards applied in cases of dual nationality:

They have given their preference to the real and effective nationality, that
which accorded with the facts, that based on stronger factual ties
between the person concerned and one of the States whose nationality is
involved.30

It posited that a ‘real and effective’ nationality with effect on the interna-
tional plane is one based on strong personal ties to a state compared with
other states. At another point in the judgment the Court says that national-
ity as a legal bond must ‘accord with the individual’s genuine connection
with the State’.31
Translating this to Nottebohm’s particular circumstances, the Court asked:

At the time of his naturalisation does Nottebohm appear to have been

more closely attached by his tradition, his establishment, his interests, his
activities, his family ties, his intentions for the near future to
Liechtenstein than to any other State?32

The Court’s answer was a resounding ‘no’, describing Nottebohm’s ties to

Liechtenstein as ‘extremely tenuous’. Its reasoning turned on three points:

28 Ibid., p. 24. Santulli concludes that absent a determination of valid nationality by the state
concerned, the nationality is invalid on the international plane. Santulli, C., Irrégularités
internes et efficacité internationale de la nationalité, Paris: Université Panthéon-Assas,
1995.
29 Nottebohm Case, op. cit., p. 21.
30 Ibid., p. 22.
31 Ibid., p. 23. Aghahosseini emphasizes the importance of terminology, defining a nationa-
lity as ‘valid’ if it has been regularly acquired in municipal law; ‘effective’ if it should be
given international effect for a specific purpose; and ‘dominant’ if it represents stronger ties
between two ‘valid’ and ‘effective’ nationalities. Aghahosseini, M., Claims of dual natio-
nals and the development of customary international law. Issues before the Iran-United States
Claims Tribunal, Leiden: Martinus Nijhoff, 2007, p 80.
32 Nottebohm Case, op. cit., p. 24.
 Nottebohm (Liechtenstein v. Guatemala), 1951 201

Nottebohm had always been a German national and had maintained ties to
Germany – nothing in Nottebohm’s application for naturalization demon-
strated a desire to ‘disassociate himself from the Government of his country’;
Nottebohm’s ties to Guatemala had been the same for 34 years and his natu-
ralization did not change their strong nature; Nottebohm had no intention
to settle, remain, or locate business interests in Liechtenstein.33 The Court
then contrasts the absence of ‘any bond of attachment between Nottebohm
and Liechtenstein’ to ‘a long-standing and close connection between him
and Guatemala’, to conclude that his naturalization was ‘lacking in the
genuineness requisite to an act of such importance, if it is to be entitled to
be respected by a State in the position of Guatemala.’34 The Court comes
close to saying Nottebohm’s intent was fraudulent, but does not, saying that
his intent was to substitute the nationality of a belligerent state for that of a
neutral state, while not ‘becoming wedded to its traditions, its interests, its
way of life’.35 The Court appears to allude to Guatemala’s allegations that
Nottebohm had been a Nazi sympathizer, which later writers have ques-
tioned.36 In any case, the judgment extended the principle of the genuine or
effective link from the context of multiple nationality to that of a single
nationality.

III The dissenting opinions and criticism of the judgment

The substantial criticism that has been levied at the Court’s reasoning largely
follows the careful and sharp dissenting opinions of Judges Guggenheim,
Read, and Klaestad. All posit that the Court should not have gone further
than to ask whether Nottebohm’s naturalization had been valid under the
laws of Liechtenstein, with the exception of fraudulent intent in acquisition,
such as in order to conceal enemy property in wartime.37
Judge Read highlights that states are entitled to great deference in deter-
mining who their nationals are.

I do not think that international law, apart from abuse of right and fraud,
permits the consideration of the motives which led to naturalisation as
determining its effects.38 …
[T]he practice of States has steadfastly rejected vague and subjective
tests for the right to confer nationality – sincerity, fidelity, durability, lack
of substantial connection.39

33 Ibid., p. 25.
34 Ibid., p. 26.
35 Ibid.
36 See generally Buys, op. cit.
37 Nottebohm Case, op. cit., pp. 57 and 65.
38 Ibid., p. 42.
39 Ibid., p. 46.
202 Alfred M. Boll

While all dissenting opinions follow the Court’s reasoning that nationality’s
effects differ on the municipal and international planes, the dissent’s empha-
sis that the status of nationality is one of law unrelated to subjective or
emotional standards, highlights its argument that ‘[t]he general rule of inter-
national law is that nationality gives rise to a right of diplomatic protection’.40
Judge Guggenheim emphasizes that cases in which nationality might be
invalid on the international plane and for purposes of diplomatic protection
are limited to cases of multiple nationality, when nationality was imposed
without the individual’s consent, or if a state still validly considers an indi-
vidual its national after he or she has acquired another nationality.41
Guggenheim calls the majority’s use of the standard of a genuine or effective
link an attempt to replace objective criteria with subjective considerations
with no basis in international practice and that can lead to arbitrary decisions.
He points out that under international law states are free to attribute their
nationality to descendants of nationals through unlimited generations, even
those who have lived abroad for centuries and who have no other link to the
state.
The Court’s emphasis that its holding was limited to Liechtenstein’s
protection of Nottebohm vis-à-vis Guatemala, appears questionable. What
was Nottebohm’s nationality for purposes of international law, if not that of
Liechtenstein? It was uncontroverted that he had lost his German national-
ity under German law upon his naturalization in Liechtenstein, although he
could have applied to retain it.42 Judges Read and Guggenheim point out
that the ruling meant Nottebohm had no state to protect him, leaving him
stateless for the purposes of international law. ‘Such a dissociation of nation-
ality from diplomatic protection is not supported by any customary rule nor
by any general principle of law’.43
Judge Guggenheim points out that the Court’s holding places the whole
system of diplomatic protection in jeopardy for individuals whose nationality
might be disputed. He cites this as contrary to the Universal Declaration of
Human Rights’ provisions on the right to a nationality, and efforts to combat
statelessness.44 Far from dismissing diplomatic protection as less important
than in the past, the International Law Commission’s (ILC) Special
Rapporteur on diplomatic protection declared in 2000 that ‘as long as the
State remained the dominant actor in international relations, the espousal of
claims by States for violations of the rights of their nationals remained the
most effective remedy for human rights protection’.45

40 Ibid., p. 46.
41 Ibid., p. 54.
42 Weis, op. cit. p. 179.
43 Nottebohm Case, op. cit., p. 60.
44 Ibid., p. 63.
45 International Law Commission, Yearbook of the International Law Commission, 2000, p.
38. Online. Available http://legal.un.org/ilc/publications/yearbooks/english/ilc_
2000_v1.pdf (accessed 1 October 2015).
 Nottebohm (Liechtenstein v. Guatemala), 1951 203

Whereas the majority expressed the issue in terms of states’ rights vis-à-vis
one another, Judge Read contemplates Nottebohm’s position as an individual
seeking redress. He emphasizes the circumstances of Nottebohm’s arrest in
Guatemala, his deportation and internment in the US without a trial in either
country or provision for him to defend himself, and the severity and extent of
the legal proceedings commenced against him to expropriate his property
without compensation.46 Alluding to the above-mentioned settlement of
Nottebohm’s civil suit against the US, Read implicitly contrasts Nottebohm’s
treatment in the US (‘Since his release, he has been accorded full civil rights
in the United States and has exercised them freely’)47 with his treatment in
Guatemala (‘He was allowed no opportunity to give evidence of the charges
made against him, or to confront his accusers in open court’).48
The dissent highlighted that Nottebohm’s claims stemmed from the
period after 1946 when Nottebohm was in Liechtenstein, and most from the
period after 1951 when Liechtenstein brought its case against Guatemala.49
Following the Court’s reasoning, was Nottebohm’s nationality still not effec-
tive at that point in time? The Court did not discuss various facts that appear
relevant, among them that it appears Nottebohm was ineligible to apply for
Guatemalan citizenship.50 While Nottebohm’s nephews and business part-
ners took advantage of new legislation in 1938 that allowed
Guatemalan-born German citizens to be naturalized, Nottebohm, who was
born in Germany, was excluded.51 His nephews’ Guatemalan nationality,
however, did not protect them. Both were arrested in December 1942 and
transferred to the US as enemy aliens.52

IV The court’s pronouncements on the nature of

nationality and naturalization
The majority’s pronouncements on the nature of nationality and naturaliza-
tion have been widely cited, arguably incorrectly, as positing rules of
international law. The Court appeared to define nationality as:

a legal bond having as its basis a social fact of attachment, a genuine

connection of existence, interests and sentiments, together with the exis-
tence of reciprocal rights and duties. It may be said to constitute the
juridical expression of the fact that the individual upon whom it is

46 Nottebohm Case, op. cit., p. 34.

47 Ibid., p. 41.
48 Ibid., p. 35.
49 Ibid., pp. 31 and 61.
50 Buys, op. cit., p. 5. Leigh is unaware of this possibility but sees the fact as relevant. G.
Leigh, ‘Nationality and diplomatic protection’, International and Comparative Law
Quarterly 20, 1971, 468.
51 Buys, op. cit., p. 5.
52 Ibid., p. 8.
204 Alfred M. Boll

conferred, either directly by the law or as the result of an act of the

authorities, is in fact more closely connected with the population of the
State conferring nationality than with that of any other State.53

Randelzhofer does not consider that the ICJ intended this to be a general
definition of nationality, and says it is limited to the issue of ‘diplomatic
protection in the particular case of conferment of nationality by naturalisa-
tion’.54 The author has previously argued that state practice that tolerates and
even incorporates multiple nationality means the majority’s definition above
can only be a definition of nationality in municipal law.55 The Court’s defini-
tion may be contrasted with Weis’ definition of nationality in international
law, which corresponds to that laid out in the dissenting opinions, and in the
author’s opinion is evidenced by state practice, as:

a technical term denoting the allocation of individuals, termed nationals,

to a specific state – the state of nationality – as members of that State, a
relationship which confers upon the State of nationality … rights and
duties in relation to other states.56

The majority’s characterization of naturalization as involving the ‘breaking of

a bond of allegiance and [the] establishment of a new bond of allegiance’57 is
also clearly faulty, given clear and widespread practice to the contrary.58

V The case’s reception and application

The 1958 Flegenheimer Claim before the United States-Italian Conciliation
Commission rejected the reasoning in Nottebohm, limiting the case to its
facts and holding that the effective link test should not be applied to persons
possessing a single nationality given the large number of persons whose legal
nationality does not correspond to their domicile, economic, or personal
interests or ties.

But when a person is vested with only one nationality … the theory of
effective nationality cannot be applied without the risk of causing confu-
sion. … There does not in fact exist any criterion of proven effectiveness
for disclosing the effectiveness of a bond with a political collectivity.59

53 Nottebohm Case, op. cit., p. 23.

54 Randelzhofer, op. cit., p. 421.
55 Boll, A., Multiple nationality and international law, Leiden: Martinus Nijhoff, 2007,
p. 297.
56 Weis, op. cit. p. 59.
57 Nottebohm Case, op. cit., p. 24.
58 Boll, op. cit.
59 Flegenheimer Claim, (Italian-United States Conciliation Commission), International Law
Reports 1958 25, p. 150.
 Nottebohm (Liechtenstein v. Guatemala), 1951 205

Like the Flegenheimer Commission and Judge Guggenheim, most commen-

tators maintain that a generalization of the ICJ’s test in Nottebohm would
lead to uncertainty in issues surrounding nationality of claims and diplomatic
protection.60 Applying a test of effective nationality to naturalized persons
only belies the fact that even native-born nationals may have no ‘genuine
link’ to their state of nationality.
The Iran-United States Claims Tribunal cites Nottebohm in its 1984 judg-
ment holding it would apply the rule of dominant and effective nationality
in cases involving dual nationality, including when one of the nationalities is
that of the respondent state.61 Aghahosseini argues it is unclear whether the
Court intended to extend its judgment to such cases.62 Interestingly, the
three dissenting judges also cited Nottebohm for their argument that the
Tribunal should have applied the rule of non-responsibility instead. They
argue that Nottebohm’s requirement of proof of a genuine link even in cases
of a single nationality reinforces the notion that states should not be allowed
to bring claims against one another when they are equally placed, that is,
when a claimant possesses both their nationalities.63
The ILC also specifically rejected Nottebohm in its draft rules on diplo-
matic protection. The Commentary specifies that

Draft article 4 does not require a State to prove an effective or genuine

link between itself and its national, along the lines suggested in the
Nottebohm case … If the genuine link requirement proposed by
Nottebohm was strictly applied it would exclude millions of persons
from the benefit of diplomatic protection.64

It should also be noted that commentators do not interpret Nottebohm as

changing the standards applicable to corporate nationality.65

VI Conclusion
The Nottebohm case is perhaps most significant in terms of the confusion it
has sown. Notwithstanding attempts to explain the Court’s reasoning, its
proposal that a ‘genuine’ link between a national and his or her state be a

60 Weis, op. cit. pp. 180–1.

61 Iran v. the United States, Judgment, Iran-U.S. C.T.R. 5, 251. See Aghahosseini, op. cit.,
p. 39.
62 Ibid., pp. 98–100.
63 Ibid., pp. 48 and 96.
64 International Law Commission, Draft articles on diplomatic protection with commentaries,
2006, pp. 31 and 33. Online. Available http://legal.un.org/ilc/texts/instruments/
english/commentaries/9_8_2006.pdf (accessed 1 October 2015).
65 D. Harris, ‘The protection of companies in international law in the light of the Nottebohm
case’, International and Comparative Law Quarterly 18, 1969, 285.
206 Alfred M. Boll

condition of diplomatic protection at international law has not been followed

in practice. Still, its clear separation of nationality in municipal and interna-
tional law has met with definite approval, as has its confirmation of the rule
that states have wide latitude in attributing their nationality. Its description
of nationality, which can only be a definition of nationality in municipal law,
is unfortunately likely to continue to cause confusion in relation to norms of
international law. The case’s political significance also appears limited,
although the Federal Republic of Germany refused to establish diplomatic
relations with Guatemala as a consequence, only reopening its embassy in
1960.66 The rejection by the ILC and in subsequent practice of the genuine
link in relation to a single nationality reflects the need for international law
to respond to individuals’ basic rights and to ensure the access to justice that
Mr Nottebohm was arguably denied.

Bibliography
Aghahosseini, M., Claims of dual nationals and the development of customary inter-
national law. Issues before the Iran-United States Claims Tribunal, Leiden:
Martinus Nijhoff, 2007.
Aleinikoff, T. and Klusmeyer, D., ‘Plural nationality: facing the future in a migratory
world,’ in T. Aleinikoff and D. Klusmeyer (eds), Citizenship today. Global perspec-
tives and practices, Washington, DC: Carnegie Endowment for International
Peace, 2001, pp. 63–88.
Boll, A., Multiple nationality and international law, Leiden: Martinus Nijhoff, 2007.
Buys, C., ‘Nottebohm’s nightmare: Have we exorcised the ghosts of WWII deten-
tion programs or do they still haunt Guantanamo?’, Chicago-Kent Journal of
International and Comparative Law 11, 2011, 1–73.
Donner, R., The regulation of nationality in international law, Irvington-on-
Hudson: Transnational Publishers, 1994.
Dörr, O., ‘Nottebohm case’, in Max Planck Encyclopedia of Public International Law,
Heidelberg: Max Planck Foundation for International Peace and the Rule of Law,
2015.
Egües, A., ‘El principio de la “nacionalidad natural”’, La Ley C, 1990, 706.
Flegenheimer Claim, (Italian-United States Conciliation Commission), International
Law Reports 1958 25, p. 91.
Harris, D., ‘The protection of companies in international law in the light of the
Nottebohm case’, International and Comparative Law Quarterly 18, 1969, 275–
317.
International Law Commission, Draft articles on diplomatic protection with commen-
taries, 2006, pp. 31 and 33. Online. Available http://legal.un.org/ilc texts/
instruments/english/commentaries/9_8_2006.pdf (accessed 1 October 2015).

66 Buys, op. cit. p. 14.

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International Law Commission, Yearbook of the International Law Commission, 2000,

p. 38. Online. Available http://legal.un.org/ilc/publications/yearbooks/
english/ilc_2000_v1.pdf (accessed 1 October 2015).
Iran v. the United States, Judgment, Iran-U.S. C.T.R. 5, 251.
Kälin, C. The global residence and citizenship handbook, Zürich: Ideos, 2011.
Koslowski, R., ‘Challenges of international cooperation in a world of increasing dual
nationality’, in D. Martin and K. Hailbronner (eds), Rights and duties of dual
nationals. Evolution and prospects, The Hague: Kluwer, 2003, pp. 157–82.
Kunz, J., ‘The Nottebohm judgment’, American Journal of International Law 54,
1960, 536–71.
Leigh, G., ‘Nationality and diplomatic protection’, International and Comparative
Law Quarterly 20, 1971, 453–75.
Nottebohm Case (Liechtenstein v Guatemala) (Preliminary Objections), I.C.J. Reports
1953, p. 111.
Nottebohm Case (Liechtenstein v Guatemala) (Second Phase), I.C.J. Reports 1955, p. 4.
Randelzhofer, A., ‘Nationality’, in R. Bernhardt (ed.), Encyclopedia of Public
International Law 8, Amsterdam: Elsevier, 1985, pp. 416–24.
Romero, C., Alberto Fujimori es peruano y no japonés, Lima: La Republica, 20 June
2001. Online. Available http://larepublica.pe/20-06-2001/alberto-fujimori-es-
peruano-y-no-japones (accessed 1 October 2015).
Santulli, C., Irrégularités internes et efficacité internationale de la nationalité, Paris:
Université Panthéon-Assas, 1995.
Sloane, R., ‘Breaking the genuine link: The contemporary international regulation of
nationality’, Harvard International Law Journal 50, 2009, 1–60.
Supremo Tribunal Federal, ‘Arquivado HC de ítalo-brasileiro’, Brasilia: 26 August
2004. Online. Available www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?id
Conteudo=63327&caixaBusca=N (accessed 25 August 2015).
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Sijthoff & Noordhoff, 1979.
‘World Court hears war seizure case’, New York Times, 11 February 1955, 9.
This page intentionally left blank
Part IV
Material contribution of
Latin American cases to
the development of
international law
International peace and security
This page intentionally left blank
18 Military and Paramilitary
Activities in and against
Nicaragua (Nicaragua v. United
States of America), 1986
Efthymios Papastavridis 1

I Introduction
If there is a case in public international law that every law student remem-
bers or is called to remember, it is the Nicaragua case. The Judgment of the
International Court of Justice (hereinafter ‘Court’ or ‘ICJ’) in the case of
Military and Paramilitary Activities in and against Nicaragua (1986)2 has
been monumental in the history of international law in many facets and
certainly insofar as the development of the law of use of force is applied.
Much ink has been spilled and even more discussion occasioned in the wake
of this judgment,3 while many subsequent international judgments have
referred to it as an authoritative source of law.4 This comes as no surprise
bearing in mind that the Nicaragua case did address quite significant issues,
including inter alia issues in relation to the sources of international law and,
in particular, the formation of international customary law,5 questions of

1 The author would like to thank Dr Panos Merkouris (Groningen University, The
Netherlands) for reading and commenting on a previous draft of this chapter. The usual
disclaimer applies.
2 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America). Merits, Judgment. I.C.J. Reports 1986, p. 14 (hereinafter: ‘Nicaragua case’).
3 See inter alia McDonald, R. St., ‘The Nicaragua case: New Answers to Old Questions?’
Canadian Yearbook of International Law 24, 1986, 127; Moore, N., ‘The Nicaragua case
and the Deterioration of World Order’, American Journal of International Law 81, 1987,
151.
4 See most notably Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J.
Reports 1996, p. 226 [hereinafter: ‘Nuclear Weapons Opinion’]; Oil Platforms (Islamic
Republic of Iran v. United States of America), Judgment, I.C.J. Reports 2003, p. 161 [herei-
nafter: ‘Oil Platforms case’]; Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168 [hereinafter:
‘Armed Activities case’]; Case Concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Merits Judgment, I.C.J. Reports 2007, p. 43 (hereinafter: ‘Genocide
Convention case’).
5 See Nicaragua case, paras 98–101. See comments in Kirgis, F. L., ‘Custom on a Sliding
Scale’ American Journal of International Law 81, 1987, 146.
212 Efthymios Papastavridis

international responsibility6 and of the law of the sea.7

However, jus ad bellum is the field of international law that, beyond any
doubt, has been dramatically influenced by the Nicaragua case. Being the
first dispute concerning use of force in the post-Charter era, the Nicaragua
case presented a unique opportunity to the ICJ to break ground in many
respects. In particular, the Court acknowledged for the first time that the use
of inter-state force has been proscribed not only in the Charter but also in
customary international law.8
Secondly, it authoritatively set forth that self-defence would warrant only
measures that are proportional to the armed attack and necessary to
respond to it as a rule well established in customary international law, even
though not mentioned in Article 51 of the UN Charter.9 The two condi-
tions of necessity and proportionality were reaffirmed by the Court in its
Nuclear Weapons Opinion10 and in its judgments in the Oil Platforms case11
and in the Armed Activities case,12 while the Institut de Droit International
(IDI) in its Santiago Resolution of 2007 declared that ‘necessity and
proportionality are essential components of the normative framework of
self-defence’.13
In addition, the Court also addressed the right of collective self-defence
and held that it is well established both in the Charter and in customary
international law.14 It did also set out the conditions for its lawful invocation
and exercise.15 Furthermore, the Court underscored the importance of
reporting the exercise of self-defence to the Security Council, as required by
Article 51 of the UN Charter. It held that the absence of a report might be
one of the factors indicating whether the state in question was itself
convinced that it was acting in self-defence.16
Besides the aforementioned general and, more or less, undisputed propo-
sitions of the Court regarding jus ad bellum, the Court did touch upon some
other issues that still elicit significant discussion, namely the case of indirect
armed attack, the permissibility of counter or any other measures in response
to forcible action short of armed attack and the question of intervention

6 See, for example, the celebrated ‘effective control’ test regarding the attribution of the
conduct of private persons to a state, which was posited by the Court in the Nicaragua
case, para. 112 and reiterated in the Genocide Convention case, at 388, 394.
7 With regard to the question whether there is a customary right of access to ports the Court
enunciated that ‘It is also by virtue of its sovereignty that the coastal State may regulate
access to its port’, Nicaragua case, para. 213.
8 Ibid., para. 99.
9 Ibid., para. 176.
10 See Nuclear Weapons Opinion, para. 41.
11 See Oil Platforms case, para. 73.
12 See Armed Activities case, para. 147.
13 Institut de Droit International, Resolution, ‘Self-Defence’, Annuaire IDI 72, 2007, 233.
14 See Nicaragua case, para. 194.
15 Ibid., para. 195.
16 Ibid., para. 200.
 Military and Paramilitary Activities 213

upon invitation. Although the Court’s pronouncements on these issues have

been widely alluded to by international scholarly writings as authoritative
statements of the relevant law, there is certainly room for different opinion,
especially in light of subsequent developments. More importantly, these
Court’s pronouncements strike at the heart of contemporary international
and non-international conflicts, such as those currently taking place in Syria
and Iraq and thus certainly invite discussion.
It is the purpose of the present chapter to revisit these dicta of the Court
in Nicaragua in view of the current international doctrine and state practice.
It goes without saying that an exhaustive treatment of these issues is beyond
the spatial confines of the present chapter; however, there will be an attempt
to encapsulate the main arguments in relation to these matters. In any event,
it is incontrovertible that the Nicaragua case is and will remain the locus clas-
sicus of law of use of force.

II The indirect armed attack and fight against terrorism

The concept of armed attack was central to the ICJ’s judgment in the
Nicaragua case; the USA claimed that its use of force against Nicaragua was
justified as collective self-defence of Costa Rica, Honduras and El Salvador
in response to armed attacks on those states by Nicaragua. However, the
Court rejected this argument as it found that there was no armed attack by
Nicaragua. While analysing the notion of armed attack, the Court considered
whether an armed attack had to be conducted by a regular army. It used
Article 3(g) of the 1974 General Assembly’s Definition of Aggression to
bolster its view that ‘the sending by or on behalf of a state of armed bands,
groups, irregulars or mercenaries, which carry out acts of armed force against
another State of such gravity as to amount to (inter alia) an actual armed
attack conducted by regular forces, or its substantial involvement therein’
could be considered an armed attack.17 The Court thus took Article 3(g) of
the 1974 Definition of Aggression to reflect customary international law,
while the Court relied on this clause again in the Armed Activities case.18
On the other hand, the Court distinguished instances falling under Article
3(g) with other modes of assistance to rebels. In its words, ‘the Court does
not believe the concept of armed attack includes not only acts by armed
bands where such acts occur on a significant scale but also assistance to rebels
in the form of the provision of weapons or logistical or other support. Such
assistance may be regarded as a threat or use of force, or amount to inter-
vention in the internal or external affairs of other States’.19 This was strongly
criticized by Judge Schwebel and Judge Jennings in their Dissenting

17 See Nicaragua case, para. 195.

18 See Armed Activities case, para. 146.
19 Nicaragua case, para. 195 (emphasis added).
214 Efthymios Papastavridis

Opinions as very restrictive and unrealistic.20 Be that as it may, states do not

challenge the view that actions by irregular forces can constitute armed
attack; the point of contention is rather the gravity of the attack itself and the
degree of the state involvement that it is necessary to make the actions attrib-
utable to the state and justify action in self-defence.21 On the face of the
Nicaragua case, it readily appears that the Court adopted a twofold test in
this regard: an ‘objective’ one, namely that the attack must have certain ‘scale
and effects’ and a ‘subjective’ one, i.e. that the perpetrator of the attack must
have a ‘substantial involvement therein’.
This test however is called into question in view of the Global War on
Terror in the wake of 9/11. It is commonplace that following 9/11, the
legal contours of the right of self-defence and generally of the jus ad bellum
have been significantly challenged, especially with regard to the threat posed
by non-state actors and international terrorism. It is beyond the ambit of the
present enquiry to address in extenso these perplexing issues of self-defence
and the contemporary law on use of force.22 The cardinal question to be
addressed in such cases is whether the terrorist act qualifies as an ‘armed
attack’ under Article 51 of the UN Charter as well as when it is permissible
to use force in response to terrorist acts.23
It is true that the Nicaragua test sets the threshold high, especially as far
as the need to prove the substantial involvement of a state in each and every
case. According to various authors, however, a possible modification of the
pertinent rules in the aftermath of 9/11 would be the shift of the threshold
required from ‘substantial involvement’ to the more lax one of ‘aiding and
abetting’; in other words, acts like providing shelter or abetting terrorists ex
post facto would be very likely to qualify as ‘substantial involvement’.24
Analogous to the ‘aiding and abetting’ theory and even more flexible is the
argument that self-defence is justified in the case that a state is ‘unable and
unwilling’ to counter terrorism.25 Telling is that in launching air strikes

20 See Schwebel, Dissenting Opinion, p. 349 and Jennings, Dissenting Opinion, p. 543.
21 See Gray, C., International Law and the Use of Force, Cambridge: Cambridge University
Press, 2000, p. 97.
22 See inter alia Lubell, N., Extraterritorial Use of Force against Non-State Actors, Oxford:
Oxford University Press, 2010. Ruys, T., Armed Attack and Article 51 of the UN Charter:
Evolutions in Customary Law and Practice, Cambridge: Cambridge University Press, 2010.
23 On the issue of the use of force in response to international terrorism post-9/11, see Tams,
C., ‘The Use of Force against Terrorists’ European Journal of International Law 20, 2009,
359; Antonopoulos, C., ‘Force by Armed Groups as Armed Attack and the Broadening of
Self-Defence’ Netherlands International Law Review 5, 2008, 159; K. Trapp, State
Responsibility for International Terrorism: Problems and Prospects, Oxford: Oxford
University Press, 2011.
24 Cf. Article 3(g) of the Definition of Aggression in GA Res 3314/1974. See also in this
respect the remarks of Randelzhofer ‘Art 51’, in Simma B. (ed.), The Charter of the United
Nations. A Commentary, Oxford: Oxford University Press, 2002, 802.
25 Deeks, A., ‘Unable or Unwilling: Toward a Normative Framework for Extraterritorial Self-
Defense’, Virginia Journal of International Law 52, 2012, 483. For a fervent opponent see
Corten, O., The Law against War, Oxford: Hart, 2012, 188.
 Military and Paramilitary Activities 215

against ISIS in Syria in 2014, the USA officially justified its action in relying
on a combination of Article 51 of the UN Charter and the ‘unwilling or
unable’ standard.26
A more cautious and conservative approach was adopted by the IDI in its
2007 Session:

(i) If non-State actors launch an armed attack at the instructions, direc-

tion or control of a State, the latter can become the object of action in
self-defence by the target State.27

The present author aligns himself with the Nicaragua test, in the sense that
there must be always a serious involvement of the state that would be the
target of the self-defence in response of the terrorist attack. This is without
prejudice, however, to the potential invocation of other circumstances
precluding wrongfulness under the law of international responsibility, such as
distress, or necessity, in order to justify less grave responses to terrorist
attacks. And this holds true notwithstanding Article 26 of the International
Law Commission (ILC) Articles on the Responsibility of States for
Internationally Wrongful Acts (hereinafter ‘ARSIWA’), according to which
when the internationally wrongful act of a state involves the violation of jus
cogens, as here the use of force, the excuses in question cannot be invoked.28
This prima facie encumbrance to the use of force in such operations premised
upon necessity or distress might be superseded on account of the thesis
advanced by Roberto Ago, one of the former special rapporteurs on the issue
of state responsibility, who distinguished between the most serious uses of
force and others less grave. Although the latter are still prohibited by Article
2(4), Ago was doubtful whether they fell under the scope of the jus cogens
prohibition.29 Accordingly, there is room for the invocation of the circum-
stances precluding wrongfulness in some exceptional cases of
counterterrorism action; for example, the plea of necessity in the 1976
Entebbe incident.30

26 See the US Letter and further comments available at http://opiniojuris.org/2014/09/

23/unwilling-unable-doctrine-comes-life/ (accessed 3 October 2015).
27 See IDI Resolution op. cit, para 10.
28 See Article 26 of the ILC Articles on Responsibility of States for Internationally Wrongful
Acts, UN General Assembly Official Records; 56th Session, Supp. No. 10 at UN. Doc
A/56/10; at 31 (hereinafter: ‘ARSIWA’).
29 See Addendum to the Eighth Report on State Responsibility by Mr Roberto Ago, YbILC
(1980-II), 40.
30 See more analysis in Paust, J., ‘Entebbe and Self-help: Israeli Response to Terrorism’,
Fletcher Forum 2, 1978, 86.
216 Efthymios Papastavridis

III Forcible (counter-)measures

The above points relating to Ago’s thesis on the jus cogens nature of the
prohibition of the use of force and the potential permissibility of circum-
stances precluding the wrongfulness as justifications of forcible action are
also relevant to another question left open by the Nicaragua case. In this
case, the Court referred to ‘measures, which do not constitute an armed
attack but may nevertheless involve a use of force’31 and found it ‘necessary
to distinguish the most grave forms of the use of force (those constituting an
armed attack) from other less grave forms’.32 The Court in the Oil Platforms
case reiterated this differentiation.33 It was also endorsed by the Eritrea-
Ethiopia Claims Commission in its Partial Award on Jus ad Bellum:
‘[l]ocalized border encounters between small infantry units, even those
involving the loss of life, do not constitute an armed attack for purposes of
the Charter’.34
At first sight, it might appear that the distinction drawn in a sketchy way
between armed attacks and lesser incursions, such as frontier incidents, was
illogical and unnecessary and it was heavily criticized by many authors.35 As
it is observed, however, by Gray, ‘despite the criticisms of the Nicaragua case,
there were nevertheless serious reasons for the Court’s distinction between
armed attacks and mere frontier incidents. Its concern was with collective
self-defence; it wanted to limit third state involvement. Its insistence on a
high threshold for armed attack would serve to limit third party involve-
ment’.36
In any event, the distinction between ‘armed attack’ and ‘use of force’
derives also from the wording of the relevant provisions of the Charter,
which substantiate the existence of a logical and pragmatic gap between
armed attack and the ‘use of force’. On the one hand, Article 2(4) of the UN
Charter forbids in general terms the ‘use of force’ in international relations
and, on the other, Article 51 permits taking self-defence measures only in the
specific case of an ‘armed attack’. This thus leaves open the question on how
states may respond to a use of force simpliciter, i.e. a forcible action not
amounting to an armed attack, such as ‘mere frontier incidents’.37
According to one strand of thought, given that all self-defence, whether
individual or collective, must be necessary and proportionate, a mere frontier

31 Nicaragua case, para. 209.

32 Ibid., para. 191.
33 See Oil Platforms case, para. 51.
34 Eritrea-Ethiopia Claims Commission, Partial Award on Jus ad Bellum (Ethiopia’s Claims
1–8), 2005, 45 ILM 430, at 433.
35 See inter alia, Dinstein, Y., War, Aggression and Self-Defense, Cambridge: Cambridge
University Press, 5th edn, 2012, at 96–97; Schacter, O., ‘In Defense of International Rules
on the Use of Force’ University of Chicago Law Review 56, 1986, 113.
36 Gray, C., International Law and the Use of Force, op. cit n. 22, 133.
37 Nicaragua case, para. 195.
 Military and Paramilitary Activities 217

incursion, for instance, would justify only a very limited response. The neces-
sity and proportionality requirements would provide adequate safeguards
against excessive use of force.38 For example, Dinstein speaks of ‘on-the spot
reaction as the case in which a small-scale armed attack elicits at once, and in
situ, the employment of counterforce by those under attack or present
nearby’.39 In a similar vein, the United States Standing Rules of Engagement
coin this as ‘unit self-defence’.40
From another viewpoint, since, arguably, the response against mere fron-
tier incidents cannot fall under the scope of Article 51 of the UN Charter,
the only possible justification seems to be proportionate measures, analogous
to but less grave than self-defence. The Nicaragua case itself did allude to
this possibility of lawful individual forcible measures, albeit not explicitly,41
whereas it did disavow such collective measures; in the Court’s words, ‘the
lawfulness of the use of force by a State in response to a wrongful act of
which itself is not the victim, is not admitted when this wrongful act is not
an armed attack’.42
Judge Simma in his Separate Opinion in the Oil Platforms case famously
introduced the notion of measures involving the minimum use of force as a
response to forcible action short of armed attack. Building on the ambivalent
dictum of the Nicaragua case, he propounded the thesis that a distinction
should be drawn between full-scale self-defence against an ‘armed attack’
within the meaning of Article 51 of the Charter, on the one hand and, on
the other, the case of hostile action below the level of Article 51, ‘justifying
proportionate defensive measures on the part of the victim, equally short of
the quantity and quality of action in self-defence expressly reserved in the
United Nations Charter’.43
It readily appears that Judge Simma was very careful not to apply the term
‘countermeasures’, aligning himself thus with the orthodox view expressed
by the General Assembly in the Declaration on Principles of International
Law concerning Friendly Relations and Cooperation among States in

38 See per this view e.g. Higgins, R., Problems and Processes, Oxford: Oxford University Press,
1994, 251.
39 Dinstein, op. cit, p. 242.
40 United States Army, Judge Advocate General’s Legal Center and School, Operational Law
Handbook (2007), at 85.
41 ‘[I]t is not for the Court here to determine what direct reactions are lawfully open to a
State which considers itself the victim of another State’s acts of intervention, possibly invol-
ving the use of force. … It might however be suggested that, in such a situation, the United
States might have been permitted to intervene in Nicaragua in the exercise of some right
analogous to the right of collective self-defense, one which might be resorted to in a case
of intervention short of armed attack’, Nicaragua case, para. 210.
42 Ibid., para. 211.
43 See Separate Opinion of Judge Simma, para 12. See also Armed Activities case, paras 126–
27 and Antonopoulos, C., ‘Force by Armed Groups as Armed Attack and the Broadening
of Self-Defence’ op. cit. n. 24, 166.
218 Efthymios Papastavridis

accordance with the Charter of the United Nations,44 as well as by the ILC in
its work on state responsibility, namely that forcible countermeasures are
prohibited. Indeed, Article 50 of ARSIWA (2001) sets forth that ‘[c]ounter-
measures shall not affect: (a) the obligation to refrain from the threat or use
of force as embodied in the Charter of the United Nations’. It is in this
regard that Judge Simma’s opinion may be read as proclaiming the permis-
sibility of forcible measures short of self-defence within the remit of the
primary rules on the use of force, as evolved by state practice, rather than
within the ambit of secondary rules of international responsibility, i.e. as
countermeasures under Article 22 of ARSIWA.45
The latter option would mean that it is accepted that such defensive meas-
ures are not part of the primary rule of self-defence, as reflected in Article 51
of the UN Charter, but either as part of customary law complementing
Article 51 or countermeasures under the law of the international responsi-
bility. Mindful of the restrictions posed not from Article 26 of ARSIWA,46
but from Article 50 of ARSIWA, the author is of the view that forcible coun-
termeasures taken in strict accordance with the principles of necessity and
proportionality in order to defend a state from a single low-scale use force,
like a frontier incident, may be excused under international law.47
In concluding, the ICJ’s cryptic statement on the permissibility of forcible
measures short of self-defence sparked a very interesting debate, which still
holds today. These measures may be called ‘on the spot self-defence’ or
‘defensive reprisals’, the truth is that states do resort to such measures and
the yardstick for the legality at the end of the day is solely their adherence to
the overarching principles of necessity and proportionality.

IV Intervention upon invitation

Finally, reference should be made to the right of a government to invite
outside intervention, which was addressed by the ICJ in the Nicaragua case
and still incites controversy. This right attains even more importance today
in view of the contemporary intervention of third states in Iraq, although
mainly in Syria to combat ISIS.

44 ‘States have a duty to refrain from acts of reprisal involving the use of force’, General
Assembly resolution 2625 (XXV), annex, first principle (hereinafter: ‘1970 Declaration’).
45 On countermeasures in general see Sicilianos, L.-A., Les réactions décentralisées a l’illicite:
Des contre-mesures a la légitime defense, Paris: Librairie générale de droit et de jurispru-
dence, 1990.
46 See Ago, ‘Addendum to the Eighth Report on State Responsibility’, op. cit. n. 30. For a
modern view see Green, J., ‘Questioning the Peremptory Status of the Prohibition of the
Use of Force’, Michigan Journal of International Law 32, 2011, 215.
47 Yoram Dinstein refers to ‘defensive armed reprisals’, which however according to him may
also be future orientated, rather than simply defensive and on the spot, as it is contended
here; see Dinstein, op. cit, pp. 249–255.
 Military and Paramilitary Activities 219

The Court did examine the possible argument that the USA was justified
in using force against Nicaragua to help the contras in their forcible opposi-
tion to the government. The ICJ said that a government may invite outside
help, but a third state may not forcibly help the opposition to overthrow the
government. According to the Court, ‘no such general right of intervention,
in support of an opposition within another State, exists in contemporary
international law’.48 This statement of the Court has authoritatively under-
pinned the so-called right of intervention upon invitation, which, according
to the Court however, is limited to intervention by the official government
of a state.49
In any event, the Court’s pronouncement in relation to intervention upon
invitation raises a host of legal issues, which have been extensively debated in
scholarly writings. Firstly, the issue has been whether the legality of forcible
intervention is merely limited to local unrest or it may apply also to civil
wars.50 The preponderant view seems to be that any form or assistance to
other states was prohibited when a civil war was taking place and control of
the state’s territory was divided between warring parties.51 Thus the permis-
sibility of intervention becomes contingent on the classification of a certain
conflict between civil war and local unrest.52 However, admittedly, this line
between unrest and civil wars has proven highly controversial and both
jurisprudence and state practice do not preclude intervention in cases of civil
conflicts.53 For example, in the Armed Activities case, the ICJ did not ques-
tion the right of Uganda to send troops to Congo – during a
non-international armed conflict – as long as the deployment was done with
the consent of the Congolese government.54 Also, recent state practice, such
as the intervention of France in the Ivory Coast (2010) and Mali (2013)
further substantiate that the non-permissibility of intervention in cases of
civil wars is not without contestation.55
However, when the IDI revisited this issue after its 1975 Wisbaden
Resolution in its Rhodes Session, it reaffirmed in Article 2 (1) that ‘military

48 Ibid., para 209.

49 See Gray, C., International Law and the Use of Force, op. cit. n. 22, pp. 57–58. See also
Doswald-Beck, L., ‘The Legal Validity of Military Intervention upon Invitation of the
Government’, British Yearbook of International Law 56, 1985, 189.
50 See inter alia Farer, T., ‘The Regulation of Foreign Intervention in Civil Armed Conflict’,
Recueil des Cours 142, 1974-II, 291.
51 Ibid., p. 57. See also the authoritative Resolution of Institut de Droit International in its
Wisbaden Session (1975); Institute de Droit International, ‘Resolution, The Principle of
Non-Intervention in Civil Wars’, Annuaire IDI 56, 545 (Wisbaden, 1975).
52 On classification of conflicts, see inter alia Green, L., The Contemporary Law of Armed
Conflict, 2nd edn, Manchester: Manchester University Press, 2000, 54.
53 See Gray, op. cit., 58 and Dinstein, Y., Non-International Armed Conflicts in
International Law, Cambridge: Cambridge University Press, 2014, 78–79.
54 Armed Activities case, para. 190.
55 See also Gara, Y., ‘The Arab Uprisings under the Light of Intervention’, German Yearbook
of International Law 55, 2012, 11.
220 Efthymios Papastavridis

assistance on request’ should be given in respect of ‘situations of internal

disturbances and tensions, such as riots, isolated and sporadic acts of violence
and other acts of a similar nature, including acts of terrorism, below the
threshold of a non-international armed conflict in the sense of Article 1 of
APII’.56 Military assistance is allowed to the government when the opposi-
tion forces in the civil war are themselves receiving external assistance,
provides consistency in international legal doctrine.
An additional issue of concern is how the invitation or the consent of the
state should be given. Here the rules of international law appear to be clear:
according to Article 20 of the ARSIWA, which enunciates ‘consent’ as a
circumstance precluding wrongfulness under international law and the ILC’s
Commentary, ‘consent by a State to particular conduct by another State
precludes the wrongfulness of that act in relation to the consenting State,
provided the consent is valid and to the extent that the conduct remains
within the limits of the consent given’.57 Accordingly, the consent or the invi-
tation for military request by a state should be prior to this request; it should
be given validly and the assistance should remain within the bounds of inter-
national law, whereas it should end when the requesting state withdraws its
consent. The ICJ in the Armed Activities case has reaffirmed this.58
A final issue is whether there is any change since Nicaragua case in respect
of the opposition requesting military assistance to combat formal govern-
mental forces. For example, would the argument of Russia with regard to the
intervention in Ukraine be tenable, i.e. that it offered military assistance to
the former President Yanukovych?59 It is highly unlikely that such a transfor-
mation of the customary rule has occurred.
The aforementioned issues have been raised recently in the current
conflict in Syria and Iraq. The intervention of the USA and its allies in Iraq
has been officially based on the request of the Iraqi government,60 while in
Syria, Russia is officially assisting the government upon its request.61 Very
importantly, it seems that these interventions have been authoritatively legit-
imized by the UN Security Council Resolution 2249(2015).62

56 Institute de Droit International, ‘Resolution on Military Assistance on Request’, Annuaire

IDI 74, 359 (Rhodes, 2011).
57 ILC, Commentary to Article 20 ARSIWA, at p. 71.
58 Armed Activities case, paras 42–54.
59 Further discussion is available at www.ejiltalk.org/intervention-with-the-consent-of-a-
deposed-but-legitimate-government-playing-the-sierra-leone-card/ (accessed 6 October
2015).
60 See Official Letter dated 20 September 2014 of the Permanent Representative of Iraq to
the United Nations addressed to the President of Security Council, S/2014/691, available
at www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-
CF6E4FF96FF9%7D/s_2014_691.pdf (accessed 6 October 2015).
61 See in this regard www.ejiltalk.org/russias-intervention-in-syria/ (accessed 5 March 2016).
62 See UN Security Council Resolution 2249 of 20 November 2015 and further comments
in www.ejiltalk.org/the-constructive-ambiguity-of-the-security-councils-isis-resolution/
(accessed 5 March 2016).
 Military and Paramilitary Activities 221

V Concluding remarks
The judgment of the ICJ in the Nicaragua case has undoubtedly been a
watershed moment in international law. States, especially from Latin
America, as well as states of the Non-Aligned Movement, regained their lost
trust – after the 1966 South-West African cases – in the rule of law on the
international stage. It is telling that after this decision, the ICJ has received
numerous applications by Latin American states in order to resolve their
disputes with the champion being, not surprisingly, Nicaragua!
The Nicaragua case, however, is, and will remain, monumental also due
to its findings in respect of many fields of international law, but more impor-
tantly in respect of the legal framework of the use of force. Its
pronouncements in this regard are still debated and still inform state practice
and international jurisprudence. Issues such as indirect aggression and self-
defence, forcible countermeasures and intervention upon invitation still
haunt international lawyers and the Nicaragua case remains the first port of
call for every scholarly analysis. It has been the most important legacy of
Latin America in the case law of the ICJ and is rightly triumphed as the locus
classicus of the jus ad bellum.

Bibliography
Antonopoulos, C., 2008 ‘Force by Armed Groups as Armed Attack and the
Broadening of Self-Defence’, Netherlands International Law Review 5, 159–180.
Corten, O., 2012 The Law against War, Oxford: Hart Publishing.
Deeks, A., 2012 ‘Unable or Unwilling: Toward a Normative Framework for
Extraterritorial Self-Defense’, Virginia Journal of International Law 52,
483–550.
Dinstein, Y., 2012 War, Aggression and Self-Defence, 5th edn, Cambridge: Cambridge
University Press.
Dinstein, Y., 2014 Non-International Armed Conflicts in International Law,
Cambridge: Cambridge University Press.
Doswald-Beck, L., 1985 ‘The Legal Validity of Military Intervention upon Invitation
of the Government’, British Yearbook of International Law 56, 189.
Farer, T., 1974 ‘The Regulation of Foreign Intervention in Civil Armed Conflict’,
Recueil des Cours 142-II, 291.
Gara, Y., 2012 ‘The Arab Uprisings under the Light of Intervention’, German
Yearbook of International Law 55, 11.
Gray, C., 2000 International Law and the Use of Force, Cambridge: Cambridge
University Press.
Green, J., 2011 ‘Questioning the Peremptory Status of the Prohibition of the Use of
Force’ Michigan Journal of International Law 32, 2011, 215–257.
Green, L., 2000 The Contemporary Law of Armed Conflict, 2nd edn, Manchester:
Manchester University Press.
Higgins, R., 1994 Problems and Processes, Oxford: Oxford University Press, 1994.
Kirgis, F. L., 1987 ‘Custom on a Sliding Scale’ American Journal of International
Law 81, 146.
222 Efthymios Papastavridis

Lubell, N., 2010 Extraterritorial Use of Force against Non-State Actors, Oxford:
Oxford University Press.
Paust, J., 1978 ‘Entebbe and Self-help: Israeli Response to Terrorism’, Fletcher
Forum 2, 86–92.
Randelzhofer, A., 2002 ‘Art 51’, in Simma B. (ed), The Charter of the United
Nations: A Commentary, Oxford: Oxford University Press 802.
Ruys, T., 2010 Armed Attack and Article 51 of the UN Charter: Evolutions in
Customary Law and Practice, Cambridge: Cambridge University Press
Sicilianos, L.-A., 1990, Les réactions décentralisées a l’illicite: Des contre-mesures a la
légitime defense, Paris: Librairie générale de droit et de jurisprudence.
Tams, C., 2009 ‘The Use of Force against Terrorists’, European Journal of
International Law 20, 359–397.
Trapp, K., 2011, State Responsibility for International Terrorism: Problems and
Prospects, Oxford: Oxford University Press
Part V
Material contribution of
Latin American cases to
the development of
international law
Territorial and maritime disputes
This page intentionally left blank
19 Territorial and
Maritime Dispute
(Nicaragua v. Colombia), 2001
Virginie J.M. Tassin

I Introduction
The long-standing territorial and maritime dispute between Nicaragua and
Colombia is enshrined in a complex political geography. The western
Caribbean’s geostrategic location and the richness of its mineral and biolog-
ical resources, including lagoons and reefs, makes it a fragile yet
quintessential place for any sovereign battle. Hence, it is with no surprise that
the tension among its neighbours has been palpable for years.
On the basis of the Pact of Bogota,1 Nicaragua instituted proceedings
against Colombia in 2001, requesting the International Court of Justice
(hereinafter ‘ICJ’) to determine the sovereignty over the islands of
Providencia, San Andrés, and Santa Catalina as well as all the appurtenant
islands and keys and over the Roncador, Serrana, Serranilla, and Quitasueño
keys. It further requested the Court to determine the course of a single
maritime boundary separating the exclusive economic zones and the conti-
nental shelves of Colombia and Nicaragua.
By means of its judgment from 13 December 2007, the Court confirmed
its jurisdiction to adjudicate the dispute. Interested to intervene, Costa Rica
and Honduras filed permissions to the ICJ in 2010, which were refused in a
judgment rendered on 4 May 2011. Public hearings were held shortly after
and another judgment, dated 19 November 2012, (hereinafter
‘Nicaragua/Colombia’)2 finally adjudicated the claims introduced in 2001. It
unanimously confirmed Colombia’s sovereignty over all the seven islands,
unanimously drew the single maritime boundary in favour of Nicaragua, and
unanimously rejected Nicaragua’s claim on the extended continental shelf.
This long-awaited judgment is of great interest to the international
community because of its subject matter and its regional impact. Following
the 2012 judgment, Nicaragua introduced a new claim against Colombia to

1 American Treaty on Pacific Settlement, 30 April 1948, UNTS 30-I-449, p. 85.

2 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012,
p. 624.
226 Virginie J.M. Tassin

the ICJ on the issue of the delimitation of the extended continental shelf 3
shortly before the effective denunciation of the Pact of Bogota by
Colombia.4 This ICJ claim is based on the Nicaraguan extended continental
shelf submission that exacerbated the disputes with Colombia and its neigh-
bours (namely Costa Rica, Panama, and Jamaica). Indeed, Columbia, Costa
Rica and Panama all declared in various communications sent to the
Commission on the Limits of the Continental Shelf 5 (hereinafter ‘CLCS’)
that the new Nicaraguan claim violated their ocean spaces and threatened the
regional peace and security of the Caribbean.
In light of these recent developments, only one aspect of the 2012 judg-
ment will be analyzed. While the ICJ rejected Nicaragua’s claim on the
delimitation of its extended continental shelf, it did address and analyze, for
the first time in ICJ’s history and the first time in the history of the interna-
tional settlement of disputes, the applicable law to the delimitation of the
extended continental shelf between a State Party (Nicaragua) to the United
Nations Convention on the Law of the Sea (hereinafter ‘UNCLOS’) and a
non-Party State (Colombia). This task was therefore delicate and difficult
given the youth of the implementation of continental shelf regime of
UNCLOS dedicated to the extended continental shelf area.

II The change in Nicaragua’s claim and the principle of

single continental shelf
When Nicaragua instituted the proceedings on 6 December 2001, it asked
the Court:

to determine the course of the single maritime boundary between the

areas of continental shelf and exclusive economic zone appertaining
respectively to Nicaragua and Colombia.6

3 I.C.J., Nicaragua institutes proceedings against Colombia asking the Court to “definitively
determine the question of the delimitation of the continental shelf between Nicaragua and
Colombia in the area beyond 200 nautical miles from the Nicaraguan coast”, Press Release,
No. 2013/21, 17 September 2013.
4 Colombia denounced the Pact of Bogota on 27 November 2012 (with effect on 27
November 2013). Nicaragua instituted the new proceedings at the ICJ on 16 September
2013. See Ibid.
5 CLCS, Communication from Jamaica in reply to the submission of Nicaragua, 12
September 2013; CLCS, Communication from Colombia, Costa Rica, and Panama in
reply to the submission of Nicaragua, 23 September 2013 and 5 February 2014; CLCS,
Communication of Costa Rica in reply to the submission of Nicaragua, 20 January 2014;
CLCS, Communication of Panama in reply to the submission of Nicaragua, 30 September
2013 and 3 February 2014; CLCS, Communication of Colombia in reply to the submis-
sion of Nicaragua, 24 September 2013 and 6 February 2014.
6 I.C.J., Application Instituting Proceedings filed in the Registry of the Court on 6 December
2001, para. 8, p. 8.
 Territorial and Maritime Dispute 227

This request was nonetheless transformed during the course of the proceed-
ings. In its final submission on 1 May 2012, Nicaragua requested the Court
to divide ‘by equal parts the overlapping entitlements to a continental shelf
of both Parties.’7
This transformation did not appear out of thin air. Nicaragua pursued a
strategy. According to judge Owada, Nicaragua ‘attempted to replace the
original formulation of the claim.’8 It is no surprise that this change exacted
the wrath of Colombia, which declared it to be ‘radical’9 and ‘fundamentally’
changing the subject matter of the dispute.10
Although it is obvious that Nicaragua filed a new claim,11 the change of
subject matter is less obvious. According to the criteria of admissibility of a
new claim, one of the two alternative tests must be satisfied: the new claim
should be either implicit on the application,12 or it must arise directly out of
the question which is the subject matter of the application.13 In the present
case, the ICJ considered that the new claim of Nicaragua fell within the defi-
nition of the dispute in the original request and thus arose directly out of the
delimitation dispute.14
Judge Owada criticized this conclusion. Indeed, none of the cases applied
by the parties15 were tackling the issue of a transformation of a claim during
the course of proceedings.16 He also rightly pointed out the notable incon-
sistency of Nicaragua’s position. Indeed, Nicaragua proclaimed the role of
geology and geomorphology in its memorial by stating that they have ‘no
relevance for the delimitation of a single maritime boundary within the
delimitation area.’17 Since geology and geomorphology are inextricably
linked to the delineation of the extended continental shelf, such an affirma-
tion highlights, as a matter of fact, a radical change in the claim.
When instituting the proceedings, Nicaragua was thus not asking the

7 Territorial and Maritime Dispute (Nicaragua v. Colombia), op. cit., para. 17, (3), p. 636.
8 I.C.J., Dissenting Opinion of Judge Owada, Territorial and Maritime Dispute (Nicaragua
v. Colombia), para. 6, p. 722.
9 I.C.J., Public sitting held on Friday 27 April 2012, at 10 a.m., at the Peace Palace, President
Tomka presiding, in the case concerning the Territorial and Maritime Dispute (Nicaragua v.
Colombia), CR 2012/12, para. 2, p. 44.
10 Article 40 of the Statute of the ICJ.
11 CR 2012/12, Ibid.
12 Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of
15 June 1962: I.C.J. Reports 1962, p. 36.
13 See Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, I.C.J. Reports
1974, para. 72, p. 203 and Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgment, I.C.J. Reports 1992, para. 67, p. 266.
14 Nicaragua/Colombia, para. 111, p. 665.
15 Certain Phosphate Lands in Nauru, op. cit., p. 240 and Ahmadou Sadio Diallo (Republic
of Guinea v. Democratic Republic of the Congo), Judgment, I.C.J. Reports 2010, p. 639.
16 I.C.J., Dissenting Opinion of Judge Owada, Territorial and Maritime Dispute (Nicaragua
v. Colombia), para. 6, p. 722.
17 I.C.J., Memorial of Nicaragua, Territorial and Maritime Dispute (Nicaragua v. Colombia),
para. 3.58, p. 215.
228 Virginie J.M. Tassin

Court to officiate the extended continental shelf’s delimitation. It was only

much later, either in light of the implementation of the delineation proce-
dure, or, according to judge Owada in connection with the 2007
Nicaragua/Colombia judgment on the preliminary objections,18 that
Nicaragua decided to change its claim.
As to the change in the subject matter, the conclusion of the ICJ is consis-
tent with the jurisprudence on the extended continental shelf but it lacks
explanations. All of the previous cases relating to the delimitation of the
extended continental shelf clearly distinguished the delineation procedure
from the delimitation procedure, and therefore the underlying subject-
matter issue. The Barbados/Trinidad and Tobago arbitration19 highlighted,
meanwhile, the principle of unity of Article 76 of UNCLOS.20 As a conse-
quence, the ICJ should have delimited the extended continental shelf during
the course of Nicaragua’s first claim and it is regrettable that the Court omit-
ted mention of such an important principle.

III The tension between sovereign rights and the

definition/delineation of the extended continental
shelf
In the present dispute, the parties agreed that the relevant provisions of
UNCLOS dedicated to baselines, entitlements to maritime spaces, and the
definition and delimitation procedures for an exclusive economic zone and
continental shelf are customary international law. They nevertheless
disagreed on the existence of any extended continental shelf in the
Caribbean21 and on the nature and content of the rules governing the enti-
tlements of coastal states to an extended continental shelf.
When facing the question of identification of customary international law
within Article 76, the ICJ stated, too briefly, that it ‘considers that the defi-
nition of the continental shelf set out in Article 76, paragraph 1, of
UNCLOS forms part of customary international law.’22 In providing neither
details on its analysis of the relevant states’ practices nor on the interpreta-
tion exercise made according to Article 76, the ICJ evaded the question and
simply declared that its task was only to determine if it was in a position to
carry out a continental shelf delimitation.23 The ICJ therefore focused its

18 I.C.J., Dissenting Opinion of Judge Owada, Territorial and Maritime Dispute (Nicaragua
v. Colombia), para. 23, p. 728.
19 Barbados/Trinidad and Tobago, Award of 11 April 2006, RIAA, Vol. XXVII, p. 147, para.
213, pp. 208–9.
20 It has been confirmed in Dispute concerning delimitation of the maritime boundary between
Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS,
14 March 2012, para. 363, p. 108 and in Bay of Bengal Maritime Boundary Arbitration
between Bangladesh and India, Award, 7 July 2014, para. 77, p. 21.
21 Colombia objects the existence of any extended continental shelf in the disputed area.
22 Nicaragua/Colombia, para. 118, p. 666.
23 Territorial and Maritime Dispute (Nicaragua v. Colombia), op. cit., para. 118, p. 666.
 Territorial and Maritime Dispute 229

analysis on the entitlement of coastal states and did not analyze the legal
nature of the procedure for establishing or delineating the extended
continental shelf and its relationship with the definition.24 This is perhaps the
reason why Article 76, paras. 2 and 3, were not included in the definition of
the continental shelf. Indeed, paragraph 2 makes direct reference to the
delineation criteria of Article 76, paras. 4 to 6.25
Such restrictive interpretation appears to be problematic for future inter-
pretation. When interpreting the meaning of natural prolongation, the
International Tribunal for the Law of the Sea (hereinafter ‘ITLOS’) recog-
nized that the notion of ‘natural prolongation’ and ‘outer edge of the
continental margin’ in paragraphs 1 and 4 are ‘closely interrelated … the
object and purpose of Article 76 of the Convention is to define the precise
outer limits of the continental shelf.’26 Recognizing only paragraph 1 of
Article 76 as customary international law means cutting out the definition of
the extended continental shelf to its precise limits. Although the
Bangladesh/Myanmar case was a case between two UNCLOS state parties,
the interpretation of ITLOS is in line with the object and purpose of
UNCLOS. Hence, if the definition of the extended continental shelf is
dissected, is it correct to affirm the customary status of its definition? How
should a non-party state define the outer limits of its extended continental
shelf without taking paragraphs 2–6 into consideration?
This dispute also highlights the possibility of a disjunction between the
sovereign rights of the coastal states and the definition/delineation of the
continental shelf. It reveals therefore a tension between the differing natures
of Articles 77 and 76. In relation to this point, judge ad hoc Mensah rightly
criticized the reference made by the ICJ to the Nicaragua v. Honduras case.27
This reference wrongly casts a doubt into the question of whether non-party
states are entitled to a continental shelf beyond 200 nautical miles.28 Beyond
any doubt, all coastal states, be they UNCLOS parties or not, have ipso facto
and ab initio rights that cannot be challenged, they are customary interna-
tional law rights.29

24 A.G. Oude Elferink ‘Article 76 of the LOSC on the definition of the continental shelf:
Questions concerning its interpretation from a legal perspective,’ The International
Journal of Marine and Coastal Law 21, 3, 269–85.
25 As outlined by Nicaragua. I.C.J., Comments in writing of the Republic of Nicaragua on the
written reply by the Colombian Government to the question put by Judge Bennouna at the
public sitting held on the afternoon of 4 May 2012, 18 May 2012, para. 12, p. 3.
26 Bangladesh/Myanmar, paras. 434–5, p. 127.
27 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea,
op. cit., para. 110, p. 695.
28 I.C.J., Declaration of Judge ad hoc Mensah, Territorial and Maritime Dispute (Nicaragua
v. Colombia), para. 7, p. 764.
29 V.J.M. Tassin, ‘L’équilibre à trouver entre l’interaction des articles 76 et 77 et la procé-
dure de définition du plateau continental étendu’, Les défis de l’extension du plateau
continental: consécration d’un nouveau rapport de l’Etat à son territoire, Paris: Pedone,
2013, pp. 226–57.
230 Virginie J.M. Tassin

IV The delineation procedure and customary

international law
Both Colombia and Nicaragua stated in their written proceedings that
‘Article 76 reflects “well-established principles of customary international
law”’.30 These affirmations place the cart before the horse! The lack of
convincing demonstrations from both parties on the delicate question of the
formation of customary law led judge Bennouna to put forth a question
during the oral proceedings in 2012 on the customary status of article 76.31
In its first brief reply, Colombia declared that implementation of Article
76, paras. 4 to 9, is undertaken only pursuant to treaty obligations.
Colombia therefore included the delineation criteria and the delineation
procedure (coastal states and CLCS) into the treaty obligations.
Such a position has of course been criticized by Nicaragua.32 In contrast to
the written reply of Colombia, that of Nicaragua is greatly detailed. But it
does not improve its argument. Indeed, in order to demonstrate that Article
76, paras. 4 to 7, have the status of customary international law, Nicaragua
used the doctrine of the ‘automatic appurtenance of the continental shelf’
deriving from the famous North Sea Continental Shelf cases.33 It therefore
used the description of the spatial extent of the continental shelf to bind this
doctrine to the continental shelf delineation rather than to the rights of the
coastal states. This interpretation seems to confuse the history and legal value
of Article 76 with the one of Article 77.
Nicaragua proceeds by providing statistics to prove the general support of
the international community for the principles of delineation of the conti-
nental shelf. It concluded that ‘more than 80 States of the 90 that have
continental shelf legislation appear to accept the definition in Article 76
(4)–(7) either explicitly in their laws or implicitly by their acceptance of the
UNCLOS.’34
Although statistics are always very illustrative, Nicaragua created unclear
categories between the various states.35 Rather than observing a clear cut
between states parties and non-party states, Nicaragua created a category of

30 I.C.J., Reply of Nicaragua, Territorial and Maritime Dispute (Nicaragua v. Colombia), 18

September 2009, para. 2.5, p. 64.
31 ‘Les règles posées à l’article 76 de la convention des Nations Unies de 1982 sur le droit de
la mer, pour la détermination de la limite extérieure du plateau continental au-delà des 200
milles marins, peuvent-elles être considérées aujourd’hui comme ayant le caractère de
règles de droit international coutumier?’.
32 Nicaragua excludes from customary international law paragraphs 8 and 9 of Article 76.
33 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, para. 19, p. 22.
34 I.C.J., Written reply of the Republic of Nicaragua to the question put by Judge Bennouna at
the public sitting held on the afternoon of 4 May 2012, para. 14, p. 5.
35 I.C.J., Comments in writing of the Republic of Colombia on the written reply by the
Nicaraguan Government to the question put by Judge Bennouna at the public sitting held on
the afternoon on 4 May 2012, para. 8, p. 2.
 Territorial and Maritime Dispute 231

states having ‘signed or ratified UNCLOS,’ thus mixing the two into the
same basket!36
Was this nebulosity a strategy by Nicaragua to hide the weakness of its
arguments? It might well be. Indeed, apart from these statistics, Nicaragua
provided examples of non-party states (Ecuador and the United States)
before annexing a table of legislation again mixing state parties and non-
party states. Interestingly, most of the legislation of non-party states of this
table follows Article 76, para. 1. Apart from Ecuador’s legislation mention-
ing the isobath rule of Article 76, para. 5, none of them make reference to
Article 76, paras. 4 to 7. Some of them, such as those from Israel, Peru, and
Venezuela, even follow the model of the Geneva Convention of 1958. The
examples provided by Nicaragua thus fail to prove any uniformed, extensive,
and representative state practice.37 Furthermore, as pointed out by
Colombia, the inclusion of provisions within customary international law
requires that the action of a state be undertaken because of a belief of
compliance with a legal obligation, the opinio juris sive necessitatis.38
Nicaragua finally raised an interesting argument according to which
treaties that are almost universally ratified, could in fact, lay the foundation
for the formation of customary international law.39
The ICJ has indeed previously recognized that representative participa-
tion, including states whose interests are specially affected, might suffice to
provide the basis for customary international law.40 The quasi-universal rati-
fication of UNCLOS could be indeed an indicator of the formation of
customary international law.41 Nevertheless, in the context of a dispute
between a party and a non-party state, Nicaragua should have studied in
detail the practice of the non-party states and countered it with the practice
of state parties in order to provide for the formation of customary law.
Moreover when considering the technicality of Article 76, paras. 4 to 6, and
the great disparity between implementation and interpretation of these para-
graphs by the CLCS and by the states, such study should go beyond the
simple assertion of transposition of UNCLOS into the domestic legislations
of states and focus on their practice of implementation.

36 ‘Non-ratification may sometimes be due to factors other than active disapproval of the
convention concerned can hardly constitute a basis on which positive acceptance of its prin-
ciple can be implied: the reasons are speculative, but the facts remain.’ North Sea
Continental Shelf, ibid., para. 73, p. 43.
37 Ibid., para. 74, p. 43.
38 North Sea Continental Shelf, ibid., para. 77, p. 44.
39 I.C.J., Written Reply of the Republic of Nicaragua to the question put by Judge Bennouna at
the public sitting held on the afternoon on 4 May 2012, 18 May 2012, para. 11, p. 3.
40 See North Sea Continental Shelf, op. cit., para. 74, p. 42. See also Case concerning Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),
Merits, Judgment, ICJ Reports 1986, para. 188, pp. 99–100.
41 The technique of the ‘package deal’ should not be confused with an accelerated way of
forming customary international law. Many provisions of UNCLOS remain not yet imple-
mented.
232 Virginie J.M. Tassin

V The interaction between the delineation and the

delimitation procedures
The ICJ rejected the claim of Nicaragua for delimitation of its continental
shelf boundary with Colombia mainly because of the lack of proof detailing
the outer limits of Nicaragua’s continental shelf. In light of the pending case
on the delimitation of the extended continental shelf between the same two
parties currently before the ICJ,42 an analysis of some of the Court and
parties’ arguments will be conducted in the following developments.

A. Principles of interaction
According to a core principle of Article 76, the actions of the CLCS shall not
prejudice matters relating to the delimitation of boundaries between states
with opposite or adjacent coasts.43
Pursuant to Annex I of the Rules of Procedure of the CLCS, in the case
of a dispute over the delimitation of the continental shelf or in ‘other cases’
of unresolved land or maritime disputes, the coastal states submitting the
extension claim shall inform the CLCS and assure it that the submission will
not prejudice matters relating to the delimitation of boundaries. Moreover,
when a land or maritime dispute exists, the prior consent of ‘all states that
are parties to such dispute’ is required in order to proceed with the delin-
eation exercise. This broad wording allows non-party states to participate in
the delineation procedure. It therefore renders a variety of dispute scenarios
possible: between state parties to UNCLOS, and between state parties and
non-party states to UNCLOS.
In some disputes, states will give their prior consent despite the running
dispute. This was the case for Norway when Russia submitted its extension
claim in 2001.44 In other disputes, a state might refuse to give its prior
consent and will therefore block the delineation procedure and the work of
the CLCS. This is the case in the delineation procedure from Myanmar,
which, despite the judgment of ITLOS in 2012, is still blocked because of
the lack of prior consent given by Bangladesh to the CLCS.45
This is not dissimilar to the current case. Following Nicaragua’s submis-
sion in 2013, the heads of states and governments of Colombia, Costa Rica,
and Panama expressed concerns regarding Nicaragua’s submission dated 30

42 I.C.J., Question of the Delimitation of the Continental Shelf between Nicaragua and
Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia),
pending.
43 Article 76, para. 10, Article 46 and Annex I of the Rules of Procedure of the CLCS.
44 CLCS, Communication of Norway in reply to the submission of Russia, 20 March 2002.
45 Following Bangladesh/Myanmar in 2012, Myanmar submitted a revised submission to the
CLCS on 30 July 2015. On 22 October 2015, Bangladesh reacted to this revised submis-
sion accusing Myanmar of not complying with UNCLOS and with the Rules of Procedure
of the CLCS.
 Territorial and Maritime Dispute 233

July 2015 claiming it constitutes ‘a clear threat to regional peace and secu-
rity.’ By applying this argument, they rejected Nicaragua’s claims and did not
authorize the CLCS to proceed with examination of the delineation.46
Colombia also reacted individually by giving an express reservation to the
‘entire document’ filed by Nicaragua and stressing that an action or inaction
from the CLCS would not affect the sovereign rights of Colombia on its
continental shelf.47 The delineation procedure is therefore currently blocked
and it is unlikely that the CLCS will examine Nicaragua’s submission in such
a tense context.

B. Which ‘information’ to take into consideration for the

determination of the outer limits of the extended
continental shelf?
In filing only preliminary information for the delineation of its extended
continental shelf, Nicaragua asserted that this filing was in conformity with
the requirements of Article 76, para. 8. This argument has been of course
objected by Colombia claiming that Nicaragua’s preliminary information
was based on ‘rudimentary and incomplete technical information’ and was
thus ‘woefully insufficient.’48
Before starting its analysis, the Court noted the difference between the
delimitation exercise and the delineation procedure. Pursuant to Article 76,
functions of the CLCS are limited to the interpretation of data and materi-
als for the issuance of a recommendation and to the scientific and technical
advising.49 The ICJ for its part has jurisdiction over ‘any dispute concerning
the interpretation or application’ of UNCLOS.50 The Court’s task is there-
fore not to examine and interpret the data of coastal state and to determine
the outer limits of the continental shelf, but rather to delimit the continen-
tal shelf between two countries. These two tasks are inextricably related yet
very different.51
The insufficient data provided by Nicaragua led the Court to rightly
conclude that the preliminary information was not sufficient to prove the
location of the outer limits of the continental shelf.52 Judge ad hoc Mensah
disagreed with this position and warned that such a requirement could lead
to an automatic exclusion of all preliminary information. According to him,

46 CLCS, Communication from Colombia, Costa Rica, and Panama in reply to the submis-
sion of Nicaragua, 23 September 2013 and 5 February 2014.
47 CLCS, Communication of Colombia in reply to the submission of Nicaragua, 24
September 2013 and 6 February 2014.
48 Territorial and Maritime Dispute (Nicaragua v. Colombia), op. cit., para. 122, p. 667.
49 Article 3, Annex II, UNCLOS.
50 Article 286, UNCLOS.
51 Bangladesh/Myanmar, para. 379, p. 112.
52 Territorial and Maritime Dispute (Nicaragua v. Colombia), op. cit., para. 129, p. 669. See
also in the same case I.C.J., Separate Opinion of Judge Donoghue, para. 12, p. 754.
234 Virginie J.M. Tassin

a submission should ‘not necessarily be required in every case to enable the

Court or Tribunal to delimit a continental shelf beyond 200 miles.’53
I could not agree more with this assertion. All preliminary information
files are different: while some of them are well furnished, others constitute
just a communication declaring the intention to file a submission in the
future. A well-furnished preliminary information could thus legitimately
serve as a basis for a court or a tribunal. The clear distinction between the
delineation and the delimitation procedures should nevertheless be kept in
mind. The interpretation and application of Article 76 requiring ‘both legal
and scientific expertise’54 indicate that international courts and tribunals
should work together with the experts from the CLCS to resolve issues
during the examination of any preliminary information or submission. The
concerns of judge Donoghue with regards to a potential blockage of both
CLCS and ICJ seem not to be justified. Inaction from the ICJ would go
against its role and the current case law.55 The work of both institutions is
complementary and their cooperation should be praised and reinforced to
ensure implementation in the spirit of UNCLOS. A lot has yet to be done.

C. The delineation procedure and the public order of oceans

While assessing the suitability of the preliminary information’s data and
materials for the delineation of the contested outer limits of the extended
continental shelf, the ICJ also examined the question of whether Nicaragua
should comply with the delineation procedure of the CLCS considering that
Colombia is a non-party state.
Judge ad hoc Cot and judge ad hoc Mensah supported the argument that
the requirements of Article 76, para. 8, should not apply to non-party states.
According to Judge ad hoc Mensah, when a dispute involves two non-party
States, ‘Article 76 of UNCLOS should not apply as between them and may,
in any event, not be available to them’.56 Judge ad hoc Cot underlined for his
part that Article 76, para. 8, does not represent customary international law:
‘Article 76, paragraph 8, is thus res inter alios acta for Colombia.’57

53 I.C.J., Declaration of Judge ad hoc Mensah, Territorial and Maritime Dispute (Nicaragua
v. Colombia), paras. 11–12, p. 766.
54 Bangladesh/Myanmar, para. 411, p. 120.
55 I.C.J., Separate Opinion of Judge Donoghue, Territorial and Maritime Dispute (Nicaragua
v. Colombia), paras. 29–30, p. 759. See also Bangladesh/Myanmar, para. 392, p. 115 and
T. Treves, ‘Conflict between the International Tribunal for the Law of the Sea and the
International Court of Justice’, New York University Journal of International Law & Policy
31, 1999, pp. 809–21.
56 I.C.J., Declaration of Judge ad hoc Mensah, Territorial and Maritime Dispute (Nicaragua
v. Colombia), para. 12, p. 766.
57 I.C.J., Declaration of Judge ad hoc Cot, Territorial and Maritime Dispute (Nicaragua v.
Colombia), para. 19, p. 771.
 Territorial and Maritime Dispute 235

Should this theory be applied to state parties, some extreme scenarios

might emerge. Let us imagine that Nicaragua is engaged in various delimita-
tion disputes with Colombia, Costa Rica, and Panama on matters relating to
the delimitation of its extended continental shelf. According to the theory of
Judge ad hoc Cot and Judge ad hoc Mensah, for cases posing Nicaragua
against Costa Rica and Panama, therefore being claims between state parties,
Nicaragua would be required to implement Article 76, para. 8. It would be
the contrary for a dispute between Nicaragua and Colombia. In such case,
what should Nicaragua do?
The difference in requirements between these disputes has the potential
to create complete chaos! It would lead ‘to a result which is manifestly
absurd or unreasonable.’58 Interpreting Article 76, para. 8, as non-legally
binding for Nicaragua because of a dispute against a non-party state would
result in ignoring the bilateral nature of the delineation procedure thereby
creating a dialogue (only) between the coastal state, willing to delineate its
continental shelf, and the CLCS. It would encourage a two-speed reading of
UNCLOS endangering the public order of oceans.
To tackle this issue, the ICJ recalled the Preamble of UNCLOS.59 It is thus
commendable that the Court considered that the fact that ‘Colombia is not
a party thereto does not relieve Nicaragua of its obligation under Article 76
of the Convention.’60 By quoting the importance of the legal order of the
oceans, the Court took into consideration the letter and spirit of UNCLOS
and seems to have applied the rule of effectiveness.61 Such interpretation is
greatly welcome. It stresses the key role of international courts and tribunals
as guardians of the peaceful uses of oceans among all states, be they
UNCLOS parties or not.

Bibliography
Magnusson, B.M., The continental shelf beyond 200 nautical miles: delineation, delim-
itation and dispute settlement, Leiden & Boston: Brill Nijhoff, 2015, p. 319.
Maw, C.E., ‘The United States and the Law of the Sea after UNCLOS III:
Comment’, in Law and Contemporary Problems, Vol. 46, N°2, 1983, pp. 55–60.
Meese, R., ‘Le plateau continental au-delà des 200 milles marins’, Chronique, in
Annuaire du droit de la mer, Paris: Pedone, 2005–14.
Oude Eferink, A.G., ‘Article 76 of the LOSC on the definition of the continental
shelf: Questions concerning its interpretation from a legal perspective’, The
International Journal of Marine and Coastal Law, 21, 3, 2006, pp. 269–85.

58 Article 32, Vienna Convention on the Law of Treaties.

59 Territorial and Maritime Dispute (Nicaragua v. Colombia), op. cit., para. 126, p. 669.
60 Ibid.
61 Interpretation of Peace Treaties (second phase), Advisory Opinion: I.C.J. Reports 1950,
p. 229.
236 Virginie J.M. Tassin

Koh, S.A., ‘Constitution Court of Colombia Finds that Implementation of ICJ

Decision Requires Treaty (May, 2, 2014),’ ASIL, 9 May 2014.
Tassin, V.J.M., Les défis de l’extension du plateau continental: consécration d’un
nouveau rapport de l’Etat à son territoire, Paris: Pedone, 2013, p. 494.
Treves, T., ‘Conflict between the International Tribunal for the Law of the Sea and
the International Court of Justice’, New York University Journal of International
Law Policy 31, 1999, pp. 809–21.
20 Maritime Dispute
(Peru v. Chile), 2008
Tullio Scovazzi

I Introduction
On 27 January 2014 the International Court of Justice (hereinafter ‘ICJ’)
rendered the judgment on the Maritime Dispute (Peru v. Chile) case.1 The
jurisdiction of the Court was based on Art. XXXI of the American Treaty on
Pacific Settlement (Bogotá, 1948).
The main question submitted to the ICJ related to the maritime bound-
ary between Chile and Peru. Chile argued that the Declaration on the
Maritime Zone (Santiago, 1952), adopted by Chile, Ecuador and Peru
(hereinafter ‘Santiago Declaration’) had already established a maritime
boundary along the parallel of latitude passing through the starting point of
the land boundary between the two countries and extending to 200 NM, as
also evidenced by subsequent agreements and practice. Peru argued that no
agreed maritime boundaries existed between the parties and requested the
Court to determine the boundary line according to equidistance in order to
achieve an equitable result.2
The ICJ decided, by fifteen votes to one, that the initial segment of the
single maritime boundary3 follows the parallel of latitude passing through the
starting point of the land boundary; by ten votes to six, that this initial
segment runs up to point A, situated at a distance of 80 NM from the start-
ing point, that the boundary continues along the equidistance line until its
intersection with the 200 mile limit from the Chilean baselines (point B) and
that it then continues along that limit until the point of intersection of the
200 mile limits measured from the Peruvian and Chilean baselines (point C)
(see Maps 20.1 and 20.2).4

1 This comment will focus only on the main aspects of the decision.
2 Maritime Dispute (Peru v. Chile), Judgment, I.C.J. Reports 2014, p. 3, para. 22.
3 As the Parties never drew any distinction between the waters and the seabed, the ICJ
concluded that the boundary is an all-purpose one (Maritime Dispute, Judgment, para.
102).
4 See the maps that show the claims of the parties (after para. 23 of the judgment) and the
boundary decided by the ICJ (after para. 190 of the judgment). The two maps are also
reproduced at p. 238 of this volume.
Map 20.1 The maritime boundary lines claimed by Peru and Chile, respectively

Map 20.2 Course of the maritime boundary

 Maritime Dispute (Peru v. Chile), 2008 239

Another question submitted to the ICJ was to determine the starting

point of the maritime boundary. By fifteen votes to one, the ICJ found that
it is located at the intersection of the parallel of latitude passing through
Boundary Marker No. 1 with the low-water line.5
The judgment is of interest for both law of treaties and law of the sea. The
coasts of Peru and Chile along the area to be delimited ‘are mostly uncom-
plicated and relatively smooth, with no distinct promontories or other
distinguishing features’6 and without islands that can influence the delimita-
tion. This is a typical case where delimitation according to equidistance,
corresponding approximately to the bisector of the angle formed by the
respective coasts, would achieve an equitable solution. However, the dispute
mostly related to whether Peru had previously agreed on a different delimi-
tation, based on a parallel of latitude, which would have the effect of cutting
off Peru from a large extent of waters and seabed that are closer to Peru than
to Chile.

II The Santiago Declaration

Both parties agreed and the ICJ confirmed that the Santiago Declaration is
an international treaty. It was subject to ratification by the three signatory
states, open to accession by other states and registered according to Art. 102,
para. 1, of the United Nations Charter.7
As to its main purpose, the Santiago Declaration represents a seminal
turning point in international law of the sea. The three parties proclaimed
that they possess exclusive sovereignty and jurisdiction over the sea and
seabed along their coasts up to a minimum distance of 200 NM from these
coasts (Arts II and III). It is the first international instrument that sets forth
the concept of a 200 mile zone where the coastal states are entitled to exer-
cise sovereign rights with regard to the exploitation of marine natural
resources, both living and mineral. Adopted on the basis of the unilateral
measures previously enacted by the two parties (the Chilean declaration of
23 June 1947 and the Peruvian decree of 1 August 1947), the Santiago
Declaration is a direct precedent of what would become some decades later
the 200 mile exclusive economic zone, as codified in the United Nations
Convention on the Law of the Sea (Montego Bay, 1982; hereinafter
‘UNCLOS’).

5 This aspect of the judgment is not analyzed in this comment. The ICJ noted that it could
be possible that the point where the land frontier starts does not coincide with the starting
point of the maritime boundary (Maritime Dispute, Judgment, para. 175). In his declara-
tion, judge Gaja remarked that this would create ‘a situation in which, albeit for a limited
stretch of the coast, the adjacent territorial sea would be under the sovereignty of a State
other than the one to which the coast belongs.’
6 Maritime Dispute, Judgment, para. 16.
7 Ibid., para. 23.
240 Tullio Scovazzi

The core of the Santiago Declaration is the outer 200 mile limit of the
claimed maritime zone. In 1952, most states, and especially the great
maritime powers, were not prepared to accept such an extended coastal state
jurisdiction. Given the uncertain fate of its main objective, the major concern
of the Declaration was to set forth the geographical, economic and political
reasons that could justify and support such a claim, as it clearly appears from
the preamble and several of its provisions.
The different question of the lateral delimitation of the maritime zones
pertaining to the three parties, which could appear as a logical, although not
indispensable, corollary to the 200 mile joint proclamation, was only partially
considered in the Santiago Declaration. The parties did not include in it any
provision on the delimitation of the maritime zones generated by their conti-
nental coasts. But they agreed on a provision relating to the delimitation of
the maritime zones generated by their islands, making reference in this case
to the parallel at the point where the land frontier reaches the sea:

In the case of island territories, the zone of 200 nautical miles shall apply
to the entire coast of the island or group of islands. If an island or group
of islands belonging to one of the countries making the declaration is
situated less than 200 nautical miles from the general maritime zone
belonging to another of those countries, the maritime zone of the island
or group of islands shall be limited by the parallel at the point at which
the land frontier of the States concerned reaches the sea (Art. IV).8

There is no explanation as to why the parties focused on the exceptional case

of islands and disregarded the continental coasts. The preparatory works do
not shed light on this inconsistency. It only appears that a sort of lateral
delimitation was implied in a Chilean proposal that was not adopted;9 it also
appears that the issue of islands was raised by the Ecuadorean delegate and
that the other two delegates agreed on his proposal.10 The argument put
forward before the ICJ by Chile that Art. IV of the Santiago Declaration
implied that delimitation according to the parallel would also be applicable
for the maritime zones generated by the continental coasts is not devoid of
some logical foundation, as any exception should be based on a rule.
However, the ICJ relied on the ordinary meaning of the only existing provi-
sion and refrained from giving it another meaning that would imply another
provision which did not exist:

The ordinary meaning of paragraph IV reveals a particular interest in the

maritime zones of islands which may be relevant even if a general

8 English translation provided in the judgment.

9 Maritime Dispute, Judgment, para. 67.
10 Ibid., para. 68.
 Maritime Dispute (Peru v. Chile), 2008 241

maritime zone has not yet been established. In effect, it appears that the
States parties intended to resolve a specific issue which could obviously
create possible future tension between them by agreeing that the paral-
lel would limit insular zones.
In light of the foregoing, the Court concludes that the ordinary
meaning of paragraph IV, read in its context, goes no further than estab-
lishing the Parties’ agreement concerning the limits between certain
insular maritime zones and those zones generated by the continental
coasts which abut such insular maritime zones.11

The ICJ consequently found that Chile and Peru did not, by adopting the
Santiago Declaration, agree to the establishment of a lateral maritime bound-
ary between them along the line of latitude running into the Pacific Ocean
from the seaward terminus of their land boundary.12 However, the ICJ made
a remark that would be relevant for a question to be subsequently addressed:

Nevertheless, various factors mentioned in the preceding paragraphs,

such as the original Chilean proposal and the use of the parallel as the
limit of the maritime zone of an island of one State party located less
than 200 nautical miles from the general maritime zone of another State
party, suggest that there might have been some sort of shared under-
standing among the States parties of a more general nature concerning
their maritime boundaries. The Court will return to this matter later.13

There is, however, another inconsistency in Art. IV of the Santiago

Declaration on which the ICJ did not elaborate. In fact, there are no islands
that can justify the inclusion of Art. IV in the declaration. No 200 mile
projections from islands can touch the parallel passing through the land fron-
tier either at the border between Chile and Peru14 or at the border between
Ecuador and Peru. Here the Ecuadorean Puno island is located too close to
the continental coast to have any such effect and the Ecuadorean Galapagos
Archipelago is located too far away from the continental coast (at about 490
NM West) to produce any overlapping with the 200 mile limit from the
coast. It thus appears that the parties agreed on the inclusion in the Santiago
Declaration of a provision that is devoid of any practical meaning. In other
words, Art. IV of the Santiago Declaration is most likely based on a

11 Ibid., paras. 61 and 62.

12 Ibid., para. 70.
13 Ibid., para. 69.
14 ‘The Court further considers that it is not necessary for it to address the existence of small
islands located close to the coast in the region of the Peru-Chile land boundary. The case
file demonstrates that the issue of insular zones in the context of the 1952 Santiago
Declaration arose from a concern expressed by Ecuador. It is equally clear from the case file
that the small islands do not appear to have been of concern to the Parties’ (Maritime
Dispute, Judgment, para. 64).
242 Tullio Scovazzi

geographical error, since the parties delimited maritime areas that do not
overlap and did not delimit areas that overlap.

III The Zone Agreement and the ‘Tacit Agreement’

In 1954, the three states in question met again in Lima and adopted six
treaties relevant to the Santiago Declaration, including the Agreement
Relating to a Special Maritime Frontier Zone (hereinafter ‘Zone
Agreement’). It provides for the establishment of a special frontier zone
where the presence of small fishing vessels cannot be considered as a viola-
tion of the waters of the parties’ maritime zones. The preamble of the Zone
Agreement seems to assume the existence of a maritime frontier between the
state parties:

Experience has shown that innocent and inadvertent violations of the

maritime frontier [la frontera marítima] between adjacent States occur
frequently because small vessels manned by crews with insufficient
knowledge of navigation or not equipped with the necessary instruments
have difficulty in determining accurately their position on the high seas.15

Art. 1 of the Zone Agreement specifies that there is a parallel that constitutes
the maritime boundary between the countries concerned (Ecuador and
Peru; Peru and Chile):

A special zone is hereby established, at a distance of [a partir de] 12

nautical miles from the coast, extending to a breadth of 10 nautical miles
on either side of the parallel which constitutes the maritime boundary [el
límite marítimo] between the two countries.16

The ICJ drew the conclusion that the relevant provisions of the Zone
Agreement constitute an acknowledgement of an already delimited boundary:

the operative terms and purpose of the 1954 Special Maritime Frontier
Zone Agreement are indeed narrow and specific. That is not however
the matter under consideration by the Court at this stage. Rather, its
focus is on one central issue, namely, the existence of a maritime bound-
ary. On that issue the terms of the 1954 Special Maritime Frontier Zone
Agreement, especially Article 1 read with the preambular paragraphs, are
clear. They acknowledge in a binding international agreement that a
maritime boundary already exists.17

15 English translation provided in the judgment.

16 English translation provided in the judgment.
17 Maritime Dispute, Judgment, para. 90.
 Maritime Dispute (Peru v. Chile), 2008 243

The ICJ was unable to specify how and when the maritime boundary, which
did not exist at the time of the Santiago Declaration,18 was agreed upon by
Chile and Peru (and Ecuador as well) in the short time between 1952 and
1954. It just found that a ‘tacit agreement’ was reached and that it was
‘cemented’ by the Zone Agreement:

The 1954 Special Maritime Frontier Zone Agreement does not indicate
when and by what means that boundary was agreed upon. The Parties’
express acknowledgment of its existence can only reflect a tacit agree-
ment which they had reached earlier. In this connection, the Court has
already mentioned that certain elements of the 1947 Proclamations and
the 1952 Santiago Declaration suggested an evolving understanding
between the Parties concerning their maritime boundary … In this case,
the Court has before it an Agreement which makes clear that the
maritime boundary along a parallel already existed between the Parties.
The 1954 Agreement is decisive in this respect. That Agreement
cements the tacit agreement.19

The assumption of the existence of a tacit agreement is a highly questionable

aspect of the ICJ judgment. How can it be assumed that an agreement estab-
lishing a maritime boundary was concluded orally, at a time that cannot be
specified, in a place that cannot be located, by plenipotentiaries that cannot
be identified, according to preparatory works that are not documented, with
no reference to such an agreement made by either of the two parties plead-
ing before the ICJ? In fact, here the ICJ tells the parties that they had
concluded an agreement that they themselves were unaware had been
concluded. Is this believable or is this something closer to a miracle than to
reality? According to a separate opinion, here the judgment proceeds ‘in an
almost Delphic manner’:20 in ancient Greece the answers given by the oracle
of Apollo at Delphi were celebrated for both their wisdom and ambiguity.
In a previous judgment rendered in 2007, the ICJ held the stringent posi-
tion that ‘the establishment of a permanent maritime boundary is a matter of
grave importance’ and that ‘evidence of a tacit legal agreement must be
compelling.’21 While quoting these passages in the 2014 judgment,22 the ICJ
completely departs from its own precedent, without any tangible explanation
for such a change.

18 Supra, para. 2.
19 Maritime Dispute, Judgment, para. 91.
20 Opinion of Judge Owada, para. 8. See also the opinion of Judge Sebutinde and the joint
opinion of Judges Xue, Gaja, Bhandari and Orrego Vicuña.
21 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 659, para. 253.
22 Maritime Dispute, Judgment, para. 91.
244 Tullio Scovazzi

Even though the ICJ assumption of a tacit agreement is far from convinc-
ing, it is a matter of fact that the parties stated in the Zone Agreement that
there is a parallel that constitutes the maritime boundary between them.
Reference to the preparatory works for the Zone Agreement indicates that,
strangely enough, the delegates of the three parties, after having discussed a
proposal made by Ecuador, finally concurred that a lateral boundary between
the maritime zones adjacent to their continental coasts and corresponding to
the above-mentioned parallel had already been established under the
Santiago Declaration. Nevertheless, and regardless of the perception of dele-
gates, Art. IV of the Santiago Declaration did not delimit the maritime zones
adjacent to the continental coasts of the parties and, insofar as it delimited
the zones adjacent to their islands, is affected by an error of fact.23 It thus
appears that in 1954 the parties made a second error24 in implicitly referring
to a provision already affected by an error of fact. The double error is a
further complication in a story already notable for inconsistencies and misun-
derstandings.

IV The outer limit under the Tacit Agreement

(first segment of the boundary)
Once decided that a tacit agreement existed, the ICJ undertook a second
step as questionable as the first one. The Court provided content to the tacit
agreement. It found that the boundary line on the parallel extended up to a
point (Point A) located at a distance of 80 NM from the starting point,
approximately corresponding to the maximum distance reached by small
fishing vessels in carrying out their activities at the considered time:

On the basis of the fishing activities of the Parties at that time, which
were conducted up to a distance of some 60 nautical miles from the main
ports in the area, the relevant practice of other States and the work of
the International Law Commission on the Law of the Sea, the Court
considers that the evidence at its disposal does not allow it to conclude
that the agreed maritime boundary along the parallel extended beyond
80 nautical miles from its starting-point.25

Here again the reasoning of the ICJ is far from convincing. As the ICJ else-
where remarked,26 the tacit agreement (if it ever existed) acknowledged in
the Zone Agreement must be understood in the context of the national
proclamations made by both countries in 1947 and the Santiago Declaration.

23 Insofar as the parties delimited areas that do not overlap (supra, para. 2).
24 Is it an error of law or an error of fact? The question is relevant for the application of Art.
48, para. 1, of the Vienna Convention on the Law of Treaties.
25 Maritime Dispute, Judgment, para. 117.
26 Ibid., para. 102.
 Maritime Dispute (Peru v. Chile), 2008 245

All these instruments referred to a clearly stated 200 mile limit and were
designed for the main purpose of preventing long-distance fishing and whal-
ing vessels flying the flag of third countries from depleting the living
resources located in such a broad maritime zone. There is no reason to
believe that, when concluding the tacit agreement (if it ever existed) some-
time between 1952 and 1954, the said states had small fishing vessels in
mind and their inadvertent violations of fishing limits within 80 NM from
the coast.27 This question was to be specifically addressed by them only at a
subsequent stage, i.e. in 1954 under the Zone Agreement, where no 80 mile
limit was mentioned at all.

V The second and third segments of the boundary

After point A, which is the terminal point of what it found to be the bound-
ary tacitly agreed upon by the parties, the ICJ turned to the delimitation of
the remaining areas. It applied the usual three-stage methodology followed
in several maritime boundary cases to provide more precise content to the
rather vague ‘equitable solution’ rule provided for in Art. 74, para. 1,
UNCLOS (delimitation of the exclusive economic zone between states with
opposite or adjacent coasts).28

The methodology which the Court usually employs in seeking an equi-

table solution involves three stages. In the first, it constructs a
provisional equidistance line unless there are compelling reasons
preventing that. At the second stage, it considers whether there are rele-
vant circumstances which may call for an adjustment of that line to
achieve an equitable result. At the third stage, the Court conducts a
disproportionality test in which it assesses whether the effect of the line,
as adjusted, is such that the Parties’ respective shares of the relevant area
are markedly disproportionate to the lengths of their relevant coasts.29

27 See the separate opinions of Judge Orrego Vicuña, para. 13, and Judge Owada, para. 24.
The ICJ seems aware of the weakness of its own argument: ‘The Court recalls that the all-
purpose nature of the maritime boundary … means that evidence concerning fisheries
activity, in itself, cannot be determinative of the extent of that boundary. Nevertheless, the
fisheries activity provides some support for the view that the Parties, at the time when they
acknowledged the existence of an agreed maritime boundary between them, were unlikely
to have considered that it extended all the way to the 200-nautical-mile limit’ (ibid., para.
111).
28 The ‘equitable solution’ rule is today generally considered as a customary rule of interna-
tional law, which is applicable also to states, such as Peru, that are not parties to the
UNCLOS. While Peru claims a 200 mile ‘maritime domain,’ and not an exclusive economic
zone, Peru’s agent formally declared before the ICJ on behalf of his government that the
term ‘maritime domain’ used in Peru’s Constitution is applied in a manner consistent with
the maritime zones set out in the UNCLOS. The Court took note of this declaration ‘which
expresses a formal undertaking by Peru’ (Maritime Dispute, Judgment, para. 178).
29 Maritime Dispute, Judgment, para. 180.
246 Tullio Scovazzi

Despite the unusual character of a situation where the starting-point for the
delimitation was located much further from the coast, precisely 80 NM from
the closest point on the Chilean coast and about 45 NM from the closest
point on the Peruvian coast,30 the ICJ selected the appropriate basepoints on
the respective coastlines to construct the provisional equidistance line.31 The
line so constructed runs almost straight in a south-west direction, reflecting
the regular character of the two coasts, until it reaches the 200 NM limit
measured from the Chilean baselines (Point B). Seaward of this point the
200 NM limit projections of the respective coasts no longer overlap.32 The
final short segment of the maritime boundary proceeds from Point B to
Point C, where the 200 NM limits of the respective maritime entitlements
intersect.33
As the provisional equidistance line avoided any excessive amputation of
either state’s maritime projections, the ICJ remarked that there was no basis
for adjusting it.34 The ICJ finally found that no significant disproportion
between the lengths of the relevant coasts and the parties’ shares of the rele-
vant area was evident, such as would call into question the equitable nature
of the delimitation.35

VI Moving from The Hague to Delphi

The dispute between Peru and Chile is unique among all maritime bound-
ary cases. In no previous instance was the main question to be settled
whether a whole boundary had ever been previously agreed upon by the
parties. The treaties by which such a boundary could have been agreed upon,
namely the 1952 Santiago Declaration and the 1954 Zone Agreement, did
not have the specific purpose to delimit the maritime zones belonging to the
parties. Moreover they were concluded at a time when the content of a rule
of international law on maritime boundaries had yet to be defined and inter-
national practice on this matter was almost non-existent. It was only in 1958,

30 Ibid., para. 183.

31 ‘In view of the location of Point A at a distance of 80 nautical miles from the coast along
the parallel, the nearest initial base point on the Chilean coast will be situated near the start-
ing-point of the maritime boundary between Chile and Peru, and on the Peruvian coast at
a point where the arc of a circle with an 80-nautical-mile radius from Point A intersects
with the Peruvian coast. For the purpose of constructing a provisional equidistance line,
only those points on the Peruvian coast which are more than 80 nautical miles from Point
A can be matched with points at an equivalent distance on the Chilean coast’ (Maritime
Dispute, Judgment, para. 185).
32 Ibid., para. 186.
33 Ibid., para. 190.
34 Ibid., para. 191.
35 Ibid., para. 194. Given the unusual situation of an agreed line running for 80 NM along
the parallel of latitude, the ICJ engaged in a broad assessment of disproportionality (ibid.,
para. 193).
 Maritime Dispute (Peru v. Chile), 2008 247

following Art. 12, para. 1, of the Geneva Convention on the Territorial Sea
and the Contiguous Zone and Art. 6 of the Geneva Contention on the
Continental Shelf, that some guidance could be found on how delimitation
should be made. Both provisions referred to the equidistance line and
allowed for exceptions where special circumstances occurred. The several
maritime boundary cases decided thereafter by the ICJ or arbitral tribunals
showed all the complexities that the equidistance/special circumstances rules
entails.
It thus appears that, when the delegates of Chile, Ecuador and Peru nego-
tiated the Santiago Declaration and its collateral instruments, they could
neither envisage nor seize the full legal and geometrical dimension of a
maritime boundary issue. It was indeed too early. This may explain all the
inconsistencies, misunderstandings and errors that the negotiations show. It
is doubtful whether during the negotiations, sufficiently accurate maps were
employed and cartographers were consulted to draw the relevant lines and to
assess the results. It is likely, although unbelievable as it may seem today, that
nobody at that time realized how illogical and inequitable a delimitation
based on a parallel would represent in the geographical context of the
maritime boundary between Peru and Chile.
In approaching such a unique case, the ICJ had two main choices. The
first was to conclude that an agreement for a maritime boundary along the
parallel already existed up to 200 NM from the coast and that Peru was
consequently bound by a totally inequitable delimitation for the simple
reason that it had put its signature under the words ‘the parallel which
constitutes the maritime boundary.’ The second choice was to conclude that
an agreement did not exist or, if it existed, was to be invalidated or termi-
nated for some reasons contemplated by the law of treaties.36 If so, a
maritime boundary had to be drawn ex novo and, given the geographical
circumstances, it could only be based on the equidistance line, despite the
fact that Peru had put its signature under the words ‘the parallel which
constitutes the maritime boundary.’ Either of the alternative choices would
have meant to fully subscribe to the claim of one of the parties and to fully
disregard the claim of the other.
A possible reading of the judgment is that the ICJ felt how inequitable
either of the two main choices would have been, given the unique circum-
stances of the case. It chose a third option37 and found a solution that, while

36 For the provisional nature of the boundary established by the Zone Agreement see the
dissenting opinion of Judge Sebutinde, para. 8.
37 ‘The Judgment has adopted an unprecedented solution for effecting maritime delimitation
in the context of the complex circumstances of this case. It appears to give satisfaction to
one Party in following the parallel to the distance noted and to the other Party in contin-
uing along an equidistance line, which were of course the two main approaches to this
dispute, albeit with a different meaning and extent’ (separate opinion of Judge Orrego
Vicuña, para. 27).
248 Tullio Scovazzi

departing from a solid legal logic, was in harmony with the inconsistencies,
misunderstandings and errors that not only represented the main peculiari-
ties of the case, but constituted its essence. This time, exceptionally, the ICJ
moved its seat from The Hague to Delphi. Here a tacit agreement material-
ized, as a deus ex machina, giving the final touch in the same style of the
picture initiated by the parties.
Two judges who voted with the majority explained why, despite their vote,
they were not convinced about the content of the tacit agreement or its very
existence. However, one of them remarked that ‘the Parties’ treatment of the
extent of the agreed maritime boundary lacks the clarity that would have
been expected in respect of a matter of that importance.38 The other one
emphasized that ‘maritime disputes count, without doubt, amongst the most
sensitive issues submitted by States to international adjudication,’ hoping
that the judgment ‘will contribute to the maintenance of peaceful and
friendly relations between Peru and Chile and, thereby, strengthen the public
order of the oceans in Latin America.’39
These two remarks are at the core of this surprising case. However ques-
tionable the explanations provided by the ICJ may be, the judgment arrived
at an equitable solution. As already noted, the answers given at Delphi were
celebrated not only for their ambiguity, but also for their wisdom. Neither of
the parties won the case, but both, building on this Delphic judgment, can
now put an end to a long-standing dispute that presented serious political
implications given the sensitivity of questions relating to national territory. In
fact, it appears that the two countries are making all the technical steps to
implement in good faith the ICJ judgment.

Bibliography
Aguëro Colunga, M., Consideraciones para la delimitación marítima del Perú, Lima:
Fondo Editorial del Congreso, 2001.
Bákula, J. M., La imaginación creadora y el nuevo régimen jurídico del mar – Perú y
Chile: ¿el desacuerdo es posible?, Lima: Universidad del Pacífico, 2008.
Infante-Caffi, M. T., ‘The Decision on the Maritime Boundary between Chile and
Perú: International Law Revisited’, in del Castillo, L. (ed.), Law of the Sea, from
Grotius to the International Tribunal for the Law of the Sea – Liber Amicorum
Judge Hugo Caminos, Leiden: Brill Nijhoff, 2015, pp. 529–44.
Jiménez de Aréchaga, E., ‘Chile – Peru’, in Charney, I. and Alexander, L. (eds),
International Maritime Boundaries, Dordrecht: Martinus Nijhoff Publishers,
1993, I, p. 793.
Rodríguez Cuadros, M., Delimitación marítima con equidad – El caso de Perú y Chile,
Lima: Peisa, 2007.

38 Declaration of Judge Sepúlveda-Amor, para. 18.

39 Declaration of Judge Skotnikov, para. 7.
 Maritime Dispute (Peru v. Chile), 2008 249

Rodríguez Cuadros, M. (ed.), Derecho internacional de la delimitación marítima,

Lima: Fondo Editorial Universidad Tecnológica del Perú, 2011 (see the contribu-
tions by Rodríguez Cuadros, Valle-Riestra and Horna).
Novak, F., and García-Corrochano, L., ‘Presentación y anális general del fallo de la
Corte Internacional de Justicia de la Haya sobre el diferendo marítimo entre el
Perú y Chile’, Agenda Internacional 21, 2014, 24–49.
Orrego Vicuña, F., ‘International Law Issues in the Judgment of the International
Court of Justice in the Peru-Chile Maritime Dispute Case’, in del Castillo, L.
(ed.), Law of the Sea, from Grotius to the International Tribunal for the Law of the
Sea – Liber Amicorum Judge Hugo Caminos, Leiden: Brill Nijhoff, 2015, pp.
563–82.
21 Territorial and Maritime
Dispute between Nicaragua and
Honduras in the Caribbean Sea
(Nicaragua v. Honduras), 1999
Chie Kojima

I Introduction
In the 2007 Judgment of the Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),1
the International Court of Justice (hereinafter the ‘Court’) determined the
single maritime boundary dividing the territorial sea, continental shelf and
exclusive economic zones of the parties by applying the angle-bisector
method, which had not been used by the Court since the mid-1980s.2 While
the equidistance method provided in Article 15 of the United Nations
Convention on the Law of the Sea (hereinafter ‘UNCLOS’)3 is a general rule
in the delimitation of the territorial sea,4 the angle-bisector method proved
to be ‘a viable substitute method’ when drawing an equidistance line is not
possible or appropriate due to ‘special circumstances’.5 The Court referred to
the unstable and changing nature of the mouth of the River Coco and stated
that accretion caused by sediments carried to sea by the river ‘might render
any equidistance line so constructed today arbitrary and unreasonable in the
near future’.6 The Court thus clarified that it does not automatically apply
the equidistance method to all cases.
Furthermore, Nicaragua v. Honduras involved the question of sover-
eignty over islands located in disputed maritime areas, which was an issue

1 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 659.
2 The cases in which a bisector line was drawn include: Continental Shelf (Tunisia v. Libyan
Arab Jamahiriya), Merits, Judgment, I.C.J. Reports 1982, p. 18; Delimitation of the
Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, p. 246;
‘Delimitation of the Maritime Boundary between Guinea and Guinea Bissau, Award of 14
February 1985’, International Legal Materials 25, 1986, 252.
3 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 3.
4 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), op. cit. n. 1, p. 745, para. 281.
5 Ibid., p. 746, para. 287.
6 Ibid., p. 742, para. 277.
 Territorial and Maritime Dispute 251

raised by Nicaragua during the oral hearings. Based on evidence supporting

post-colonial effectivités, the Court confirmed that the islands belonged to
Honduras, and that it had a right to establish a territorial sea of 12 NM from
the islands.7 The Court delimited the maritime boundary by enclaving the
islands in the Nicaraguan exclusive economic zone.
While some have argued that Nicaragua v. Honduras was a departure
from earlier jurisprudence of the Court, others view the judgment as consis-
tent with it.8 The differences in opinion indicate that the Court’s
jurisprudence on maritime delimitation has not gained objectivity. However,
Nicaragua v. Honduras helped clarify the Court’s jurisprudence on methods
of maritime delimitation. This chapter provides an overview of the 2007
Judgment and discusses its contribution to the development of international
law as well as its implications to state practice in Latin America.

II Background and history

Both Nicaragua and Honduras obtained sovereignty over their respective
territory when they became independent from Spain in 1821. However, the
treaties recognizing the two states’ independence and sovereignty over their
respective territory comprising adjacent islands along their coasts did not
specify the islands’ names.9 The two states made a series of attempts to agree
on their boundary, which successfully led to the conclusion of the 1894
Gámez-Bonilla Treaty establishing the Mixed Boundary Commission.10
Article II, paragraph 3, of the Treaty stipulated, in accordance with the prin-
ciple of uti possidetis juris, that ‘each Republic is the owner of the territory
which at the date of independence constituted, respectively, the provinces of
Honduras and Nicaragua’.11 The commission succeeded in demarcating the
boundary between the two states facing the Pacific Ocean, but failed to
determine the disputed boundary in the western Caribbean Sea.
Subsequently, in accordance with Article III of the Treaty, Nicaragua and
Honduras appointed King Alfonso XIII of Spain as the sole arbitrator to
settle the dispute. The Arbitral Award handed down on 23 December 1906
drew a boundary from the mouth of the River Coco at Cape Gracias to
Portillo de Teotecacinte, but the validity and binding character of the award
were questioned by Nicaragua in 1912. Following the mediation by the

7 Ibid., p. 751, para. 302.

8 Judge Koroma wrote ‘the Judgment is both consistent with and reflective of the jurispru-
dence on maritime delimitation, including the Court’s case law’, ibid., p. 774 (Separate
Opinion of Judge Koroma).
9 Ibid., pp. 673–4, paras 34–5.
10 The translation of the treaty appears in the Judgment of 18 November 1960 in the Case
concerning the Arbitral Award made by the King of Spain on 23 December 1906 (Honduras
v. Nicaragua), I.C.J. Reports 1960, pp. 199–202.
11 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), op. cit. n. 1, p. 674, para. 37.
252 Chie Kojima

Organization of the American States, Nicaragua submitted the dispute

before the Court, which found that the award was valid and binding and that
Nicaragua was under an obligation to give effect to it.12 Since the two states
could not agree on how to implement the award, the Inter-American Peace
Committee upon Nicaragua’s request established a Mixed Commission. In
1962, the Mixed Commission completed the demarcation of the boundary
line and determined that the land boundary would begin at the mouth of the
River Coco.
Honduras and Nicaragua maintained friendly relations from 1963 to
1979, but no progress was made in bilateral negotiations. The relations
between the two states then deteriorated because of the capture and/or
attack of fishing vessels by each state in the vicinity of the disputed maritime
area. Furthermore, Honduras expressed its intention to ratify the 1986
Treaty on maritime delimitation with Colombia, in which the Honduran
claim to a traditional boundary along the fifteenth parallel was recognized.
Nicaragua sought a regional solution by instituting proceedings against
Honduras before the Central American Court of Justice to suspend the
procedure of ratification of the 1986 Treaty. Having ignored the Court’s
order to suspend the procedure of ratification, Honduras and Colombia
exchanged instruments of ratification of the 1986 Treaty on 20 December
1999. The Court held, in its Judgment of 27 November 2001, that
Honduras infringed a number of provisions of the Tegucigalpa Protocol to
the Charter of the Organization of Central American States, in particular the
concept of the ‘territorial patrimony of Central America’, included in the
fundamental objectives and principles of the Central American Integration
System.
Against this background, Nicaragua instituted proceedings against
Honduras before the Court on 8 December 1999, requesting that it deter-
mines a single maritime boundary in areas of territorial sea, continental shelf
and exclusive economic zone of the two states. During the oral proceedings,
Nicaragua further raised the question of sovereignty over the islands located
in the disputed maritime areas. On 8 October 2007, the Court rendered a
judgment, to which Judges Ranjeva and Koroma appended separate opin-
ions, Judge Parra-Aranguren and Judge ad-hoc Gaja declarations and Judge
Torres Bernárdez a dissenting opinion.

III Judgment of 8 October 2007

A. Sovereignty over the islands

The Court’s examination of sovereignty claims over the maritime features in
the vicinity of the maritime area in dispute was divided into three phases: (1)

12 Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua),
Judgment, I.C.J. Reports 1960, p. 192.
 Territorial and Maritime Dispute 253

the admissibility of the claim, (2) the type of maritime features whose sover-
eignty was to be determined by the Court, and (3) the legal basis of
sovereignty over the islands specified by the Court.
First, the Court examined Nicaragua’s claim and decided that the ques-
tion of sovereignty was ‘inherent in the original claim relating to the
maritime delimitation’ and, therefore, admissible.13
Second, the maritime features in the disputed maritime area included four
main cays – Bobel Cay, Savanna Cay, Port Royal Cay and South Cay – and a
number of smaller islets, cays and reefs. Both Nicaragua and Honduras did
not identify all the islands and cays by name, but they did not dispute the fact
that the four main cays remain above water at high tide. The Court, there-
fore, decided to consider sovereignty of these four cays as islands falling
within the definition under Article 121, paragraph 1, of UNCLOS. It found
that there was a lack of evidence concerning the legal status of other smaller
islets, cays and reefs in the disputed area.14
Third, Nicaragua and Honduras argued different legal bases for sover-
eignty over the islands, while they agreed that none of the islands and cays
in dispute, including the four main cays, were terra nullius when they gained
independence from Spain in 1821. Nicaragua contended that it was impos-
sible to establish the uti possidetis juris situation of 1821 and therefore held
the original title over the cays under the principle of adjacency. Honduras
asserted that its title over the cays was based on the doctrine of uti possidetis
juris, which was evidenced by effectivités.
On this question, the Court stated that ‘it is beyond doubt that the prin-
ciple [of uti possidetis juris] is applicable’15 if the Spanish Crown allocated the
islands to one or the other of its colonial provinces. The Court also noted
that both states agreed in Article II, paragraph 3, of the 1894 Gámez-Bonilla
Treaty that ‘each Republic [was] owner of the territory which at the date of
independence constituted, respectively, the province of Honduras and
Nicaragua’.16 The Court, however, found that the application of the princi-
ple to the small islands would not settle the issue of sovereignty over them
because of the following reasons. First, there was no evidence that Spain had
allocated the islands to Nicaragua or Honduras.17 Second, there was no legal

13 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), op. cit. n. 2, p. 697, para. 115.
14 The Court therefore left the question of sovereignty over those smaller islets, cays and reefs
in the disputed area. L. A. de La Fayette wrote: ‘[p]resumably, they would belong to the
State in whose waters they were located in accordance with the delimitation’. See, de La
Fayette, L. A., ‘Maritime Delimitation between Nicaragua and Honduras in the Caribbean
Sea Case (Nicaragua v. Honduras)’, Max Planck Encyclopedia of Public International Law
VI, 2012, 1091–101.
15 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), op. cit. n. 2, pp. 706–7, para. 154.
16 Ibid.
17 Ibid., p. 708, para. 160.
254 Chie Kojima

or geographical reason that supports the adjacency argument put forward by

Nicaragua.18 Third, there was a lack of evidence to prove colonial effectivités
in relation to the islands.19
Accordingly, the Court relied on post-colonial effectivités to determine
sovereignty over the islands. Although the Court found some of the evidence
submitted by Honduras unconvincing, it admitted that some other activities
indeed constituted evidence of post-colonial effectivités, such as the applica-
tion and enforcement of criminal and civil law, regulation of immigration and
regulation of fishery activities. Since Nicaragua had not objected to these
acts, the Court found that the evidence demonstrated an ‘intention and will
to act as sovereign’ constituting a ‘modest but real display of authority over
the four islands’ by Honduras.20

B. Delimitation of the maritime boundary

Nicaragua asserted that its maritime boundary with Honduras in the
Caribbean Sea had not been delimited and proposed that the Court delimits
it by means of the angle-bisector method. Honduras maintained the position
that there existed a traditionally recognized boundary along the fifteenth
parallel between the maritime spaces of Honduras and Nicaragua. Honduras
argued that this traditional boundary originated from ‘the principle of uti
possidetis juris’ and was founded on the practice of the parties and third states
as well as the Spanish Crown’s practice to use parallels and meridians as
boundaries.
The Court found that Honduras could present no evidence of previous
colonial power’s practice, and therefore it could not delimit the maritime
boundary based on the uti possidetis juris principle.21 The Court further
rejected Honduras’ claim that neither the oil concessions, the 1986 Treaty
between Colombia and Honduras nor the 1993 Treaty between Colombia
and Jamaica were sufficient to prove that a tacit agreement establishing a
boundary between the two states existed.22 The Court applied a strict stan-
dard wherein evidence of a tacit agreement had to be compelling.23
Turning to the question of the methodology to be used for the maritime
boundary delimitation, the Court emphasized that ‘the equidistance method
does not automatically have priority over other methods of delimitation and,
in particular circumstances, there may be factors that make the application of
the equidistance method inappropriate’. 24 The important factor in

18 Ibid., p. 709, para. 164.

19 Ibid., p. 710, para. 166.
20 Ibid., p. 721, para. 208.
21 Ibid., p. 729, para. 234.
22 Ibid., pp. 735–7, paras 254–8.
23 Ibid., p. 735, para. 253.
24 Ibid., p. 741, para. 272.
 Territorial and Maritime Dispute 255

Nicaragua v. Honduras was that the mouth of the River Coco shifted consid-
erably over time. Moreover, the parties agreed that the sediment carried to
and deposited at sea by the river shaped its delta, as well as the coastline to
the north and south of Cape Gracias a Dios, and exhibited a very active
morpho-dynamism.25 The Court, therefore, found that ‘continued accretion
at the Cape might render any equidistance line so constructed today arbitrary
and unreasonable in the near future’,26 and concluded that it was impossible
to identify base points and construct a provisional equidistance line.27
Envisaging a situation where the drawing of an equidistance line is not
possible or appropriate, Article 15 of UNCLOS, which is identical to Article
12, paragraph 1, of the 1958 Convention on the Territorial Sea and the
Contiguous Zone, stipulates that the equidistance method does not apply
‘where it is necessary by reason of historic title or other special circum-
stances’. The Court stated that ‘[n]othing in the wording of Article 15
suggests that geomorphological problems are per se precluded from being
“special circumstances” within the meaning of the exception, nor that such
“special circumstances” may only be used as a corrective element to a line
already drawn’.28 Having considered the commentary of the International
Law Commission and its own jurisprudence, the Court concluded that it
faced ‘special circumstances’ in which it could not apply the equidistance
principle.29 Simultaneously, the Court reiterated that equidistance remained
the general rule.30
Accordingly, the Court applied an alternative method, a line bisecting two
lines drawn along the coastal fronts of the two states. The bisector method
‘seeks to approximate the relevant coastal relationships, but does so on the
basis of the macro-geography of a coastline as represented by a line drawn
between two points on the coast’, whereas the equidistance method does the
same by considering the ‘relationships between designated pairs of base
points’.31 The Court emphasized that the key elements for using the bisector
method were the ‘geographical configuration of the coast, and the geomor-
phological features of the area where the endpoint of the land boundary is
located’.32 In considering the relevant mainland coast, the Court rejected
Nicaragua’s argument that the entire Caribbean coast should be taken into
account. Having considered different coastal fronts, the Court decided that
the front extending from Punta Patuca to Wouhnta would avoid the prob-
lem of cutting off Honduran territory and simultaneously provide a coastal

25 Ibid., p. 742, para. 277.

26 Ibid.
27 Ibid., pp. 743–5, para. 280.
28 Ibid.
29 Ibid., p. 745, para. 281.
30 Ibid.
31 Ibid., p. 747, para. 289.
32 Ibid., p. 748, para. 292.
256 Chie Kojima

façade of sufficient length to account properly for the coastal configuration

in the disputed area.33 The bisector line, therefore, had an azimuth of 70° 14’
41.25” in the judgment.
With regard to the delimitation around the islands, which were confirmed
to be under Honduras’ sovereignty, the Court noted that Nicaragua did not
dispute that the islands generated a territorial sea but argued that the
Honduran islands should only have a 3-mile territorial sea because a ‘full 12-
mile territorial sea … would result in giving a disproportionate amount of
the maritime areas in dispute to Honduras’.34 Honduras insisted its claim of
a 12-mile territorial sea for the four islands. On this question, the Court
upheld the claim of Honduras by simply referring to Article 3 of UNCLOS.35
Accordingly, Bobel Cay, Savanna Cay, Port Royal Cay and South Cay were
accorded a territorial sea of 12 NM.36
In generating a 12-mile territorial sea from the islands, an overlap
occurred between the territorial sea of Bobel Cay, Port Royal Cay and South
Cay (Honduras) and the territorial sea of Edinburgh Cay (Nicaragua) both
to the south and to the north of the fifteenth parallel. To solve this problem,
the Court suggested to first provisionally draw an equidistance line and then
consider whether the line should be adjusted in light of special circum-
stances, which was a method also used in the Maritime Delimitation and
Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain).37 Since
the Court did not find any legally relevant ‘special circumstances’ in the area,
it drew an equidistance line between the overlapping territorial seas of the
three Honduran islands and Edinburgh Cay.38
Regarding the starting point of the delimitation, the Court upheld
Honduras’ submission and determined that the starting point should begin
3 miles out to sea from the point already identified by the Mixed
Commission in 1962 along the azimuth of the bisector line it had drawn.39
The Court held that the parties must negotiate in good faith to agree on a
line that links the end of the land boundary as fixed by the 1906 Award and
the starting point of the maritime boundary determined in the judgment.40
Concerning the endpoint, the Court took into account certain interests of
third states arising from bilateral treaties and consequently delimited the
maritime boundary extending beyond the 82nd meridian without specifying
a precise endpoint.41

33 Ibid., p. 749, para. 298.

34 Ibid., p. 751, para. 300.
35 Ibid., p. 751, para. 302.
36 Ibid.
37 Ibid., pp. 751–2, para. 303; Maritime Delimitation and Territorial Questions between
Qatar and Bahrain (Qatar v. Bahrain), Judgment, I.C.J. Reports 2001, p. 94 para. 176.
38 Ibid., p. 752, paras 304–5.
39 Ibid., p. 756, para. 311.
40 Ibid., p.763.
41 Ibid., p. 759, para. 319.
 Territorial and Maritime Dispute 257

IV Appraisals

A. Methods of maritime delimitation

UNCLOS comprises provisions concerning the delimitation of territorial sea
(Art. 15), exclusive economic zone (Art. 74) and continental shelf (Art. 83).
With regard to the delimitation of the territorial sea, Article 15 of UNCLOS
stipulates the equidistance/special circumstances rule, which was equally
embodied in Article 12, paragraph 1, of the 1958 Convention on the
Territorial Sea and the Contiguous Zone.42 However, Articles 74 and 83 do
not specify any method of delimitation for the exclusive economic zone and
the continental shelf. In the drafting process of these articles during the
Third United Nations Conference on the Law of the Sea (UNCLOS III),
one group of states that was in favour of the equidistance/special circum-
stances rule, and another group of states that was in favour of equitable
principles conflicted with each other. Difficulties in delimiting a maritime
boundary were already foreseen since the time of the UNCLOS III.43
Without explicit references to the method of maritime delimitation of the
exclusive economic zone and continental shelf under UNCLOS, jurispru-
dence of international courts and tribunals reflected certain trends in terms
of choices of the method of maritime delimitation.
It has been observed that the most recent trend in the jurisprudence of
maritime delimitation is the ‘three-stage approach’, which appeared after the
two-stage approach widely employed before Nicaragua v. Honduras. The
three-stage approach was first employed in the Maritime Delimitation in the
Black Sea (Romania v. Ukraine)44 in 2009, then in the Territorial and
Maritime Dispute (Nicaragua v. Colombia)45 in 2012 and in the
Delimitation of the Maritime Boundary between Bangladesh and Myanmar in
the Bay of Bengal (Bangladesh/Myanmar) in 2012.46 The three-stage
approach consists of: (1) constructing a provisional equidistance line, based
on the geography of the parties’ coasts and mathematical calculations, (2)
determining whether there are any relevant circumstances requiring adjust-
ment of the provisional equidistance line, and (3) checking whether the line,
as adjusted, resulted in any significant disproportion between the ratio of the

42 Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 U.N.T.S.
205.
43 Yanai, S., ‘Can the UNCLOS Address Challenges of the 21st Century?’, German Yearbook
of International Law 57, 2014, 54.
44 Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports
2009, pp. 101–3, paras 116–22.
45 Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, Judgment, I.C.J.
Reports 2012, pp. 695–8, paras 190–9.
46 Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and
Myanmar in the Bay of Bengal (Bangladesh/Myanmar), ITLOS Reports 2012, p. 76, para.
240.
258 Chie Kojima

respective coastal lengths and the ratio of relevant maritime areas allocated to
each party.47 Despite this trend in maritime delimitation cases, it is generally
understood that ‘there is no single or mandatory delimitation method that is
applicable to all delimitation cases, as each case arises under unique circum-
stances’ as Judge Yanai writes.48 In Nicaragua v. Colombia, the Court
referred to Nicaragua v. Honduras and reiterated that the three-stage
approach should not ‘be applied in a mechanical fashion’ and that it would
not be ‘appropriate in every case to begin with a provisional equidis-
tance/median line’.49
Subsequent judgments of international courts and tribunals positively
refer to Nicaragua v. Honduras by evaluating the angle-bisector method as
secondary or alternative choice of delimitation method. In Romania v.
Ukraine, the Court referred to Nicaragua v. Honduras in the following way:
‘[s]o far as delimitation between adjacent coasts is concerned, an equidis-
tance line will be drawn unless there are compelling reasons that make this
unfeasible in the particular case’.50 The International Tribunal for the Law of
the Sea similarly observed in Bangladesh/Myanmar that the angle-bisector
method was ‘an alternative to the equidistance/relevant circumstances
method, where recourse to it has not been possible or appropriate’.51
Accordingly, Nicaragua v. Honduras contributed to clarify the interna-
tional court’s jurisprudence that the equidistance method, even though it is
recognized as the general rule, does not automatically have priority over
other methods of delimitation. A controversy, however, remains with regard
to the criteria on admitting the deviation from the general rule. Some
authors question whether the highly unstable nature of the mouth of a river
can alone exclude the application of the equidistance method. Judge Ranjeva
pointed out in his Separate Opinion that UNCLOS ‘did not overlook the
potential for extremely unstable coastlines’.52 Article 7, paragraph 2, of
UNCLOS stipulates a solution to identify basepoints for unstable coastlines:

Where because of the presence of a delta and other natural conditions

the coastline is highly unstable, the appropriate points may be selected
along the furthest seaward extent of the low-water line and, notwith-
standing subsequent regression of the low-water line, the straight

47 Ibid.
48 Yanai, S., ‘Can the UNCLOS Address Challenges of the 21st Century?’, op. cit. n. 43,
p. 55.
49 Territorial and Maritime Dispute (Nicaragua v. Colombia), op. cit. n. 45, p. 696, para.
194.
50 Maritime Delimitation in the Black Sea (Romania v. Ukraine), op. cit. n. 44, p. 101, para.
116.
51 Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and
Myanmar in the Bay of Bengal (Bangladesh/Myanmar), op. cit. n. 46, pp. 74–5 para. 234.
52 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), op. cit. n. 1, p. 767 (Separate Opinion of Judge Ranjeva).
 Territorial and Maritime Dispute 259

baselines shall remain effective until changed by the coastal State in

accordance with this Convention.

Judge Ranjeva criticized the Court’s restrictive approach in Nicaragua v.

Honduras that the geomorphological element was solely applied as a suffi-
cient reason to justify the necessity of abandoning the general rule, instead
of proving the impossibility of applying the general rule.53
Y. Tanaka pointed to the changing nature of the configuration of coast-
lines due to erosion, accretion and sea-level rise resulting from global
warming.54 He emphasized the stable nature of legal maritime boundaries by
stating that maritime boundaries established by agreements and through
international adjudication should not be affected by subsequent changes in
the configuration of coasts.55 Tanaka further argued that the shifting coast-
line alone would not automatically make the equidistance line inequitable
since the Court was supposed to examine all relevant circumstances in adjust-
ing the equidistance line in order to achieve an equitable result.56
It must be considered, however, that both a decision to follow the general
rule and a decision not to follow the general rule are not free from subjec-
tive elements. One may recall that, in Bangladesh/Myanmar, the Tribunal
stated that ‘[i]nternational courts and tribunals have developed a body of
case law on maritime delimitation which has reduced the elements of subjec-
tivity and uncertainty in the determination of maritime boundaries and in the
choice of methods employed to that end’.57 On this point, Judge Treves
succinctly commented that the progress made towards reducing subjectivity
and uncertainty is ‘probably unavoidably, far from complete so that adjudi-
cation of disputes concerning delimitation of maritime areas remains an
uncertain exercise where subjective elements are often decisive’.58 Even
though the equidistance principle seems to gain certain objectivity among
scholars and legal practitioners, its application cannot be automatic for all
maritime delimitation cases in principle.

B. Treatment of islands
In Nicaragua v. Honduras, the Court admitted ‘the right to establish the
breath of its territorial sea up to a limit of 12 nautical miles be that for its

53 Ibid.
54 Tanaka, Y., ‘Reflections on Maritime Delimitation in the Nicaragua/Honduras Case’,
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 68, 2008, p. 925.
55 Ibid., pp. 925–6.
56 Ibid., p. 926.
57 Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and
Myanmar in the Bay of Bengal (Bangladesh/Myanmar), op. cit. n. 47, p. 72, para. 226.
58 Treves, T., ‘Maritime Delimitation and Offshore Features’, in Jayakumar, S., Koh, T., and
Beckman, R. (eds), The South China Sea Disputes and Law of the Sea, Cheltenham: Edward
Elgar, 2014, p. 132.
260 Chie Kojima

mainland or for islands under its sovereignty’.59 The right was also recog-
nized in the judgments of Nicaragua v. Colombia in 201260 and
Bangladesh/Myanmar in 2012.61 The Court stated, in Nicaragua v.
Colombia, that it had never restricted the right on the basis of an overlap with
the continental shelf and exclusive economic zone of another state.62
With regard to the effect of islands in the delimitation of the exclusive
economic zone or continental shelf boundary, the jurisprudence of interna-
tional courts and tribunals provides no general rule.63 The effect to be given
to an island ‘depends on the geographic realities and the circumstances of the
specific case’.64 In Nicaragua v. Honduras, the Court enclaved the islands
with a 12 NM territorial sea within the Nicaraguan exclusive economic zone
and drew an equidistance line between the overlapping territorial seas of the
three Honduran islands and the Nicaraguan island.

C. State practice in Latin America

The implications of Nicaragua v. Honduras to state practice in Latin America
are twofold: the recognition of principle of uti possidetis and the tradition of
utilizing international institutions for the peaceful settlement of international
disputes. First, the principle of uti possidetis was developed by Latin American
states as early as the nineteenth century.65 Although the Court could not
apply the principle of uti possidetis in determining the maritime boundary
due to the lack of evidence, it endorsed the applicability of the principle in
the case.66
Second, Nicaragua and Honduras initially sought different peaceful means
of dispute settlement such as negotiations, international commission and
arbitral tribunal established under bilateral agreement, and mediation by a
regional organization. Considering the tradition of Central American states
as being the first ones to establish a regional international court in the world,
it is not surprising that the parties positively utilized international institutions

59 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), op. cit. n. 1, p. 751, para. 302.
60 Territorial and Maritime Dispute (Nicaragua v. Colombia), op. cit. n. 45, p. 690, para.
177.
61 Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and
Myanmar in the Bay of Bengal (Bangladesh/Myanmar) op. cit. n. 46, pp. 55–6, para. 169.
62 Territorial and Maritime Dispute (Nicaragua v. Colombia), op. cit. n. 45, pp. 690–1, para.
178.
63 Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and
Myanmar in the Bay of Bengal (Bangladesh/Myanmar) op. cit. n. 46, p. 96, para. 317.
64 Ibid.
65 Infante Caffi, M. T., ‘Boundary Disputes in Latin America’, Max Planck Encyclopedia of
Public International Law I, 2012, 1017–8.
66 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), op. cit. n. 1, pp. 706–7, para. 154.
 Territorial and Maritime Dispute 261

for the common goal of resolving a maritime boundary dispute, except for
one occasion when Honduras ignored the proceedings before the Central
American Court of Justice brought forth by Nicaragua. In this historical
context, it is significant that the Court finally played a role in resolving one
of the long-lasting disputes among the Central American states with a judg-
ment accepted by both parties.67

Bibliography
De La Fayette, L. A., ‘Maritime Delimitation between Nicaragua and Honduras in
the Caribbean Sea Case’, Max Planck Encyclopedia of Public International Law VI,
2012, 1091–101.
Infante Caffi, M. T., ‘Boundary Disputes in Latin America’, Max Planck Encyclopedia
of Public International Law I, 2012, 1017–28.
Kirk, E. A., ‘Case Concerning Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October
2007’, International and Comparative Law Quarterly 57, 2008, pp. 701–9.
Lathrop, C. G., ‘Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v. Honduras)’, American Journal of
International Law 102, 2008, pp. 113–9.
Tanaka, Y., ‘Reflections on Maritime Delimitation in the Nicaragua/Honduras Case’,
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 68, 2008, 903–37.
Treves, T., ‘Maritime Delimitation and Offshore Features’, in Jayakumar, S., Koh, T.,
and Beckman, R. (eds), The South China Sea Disputes and Law of the Sea,
Cheltenham: Edward Elgar, 2014, pp. 121–43.
Yanai, S., ‘International Law concerning Maritime Boundary Delimitation’, in D.J.
Attard, M. Fitzmaurice and N.A. Martínez Gutiérrez (eds) The IMLI Manual on
International Maritime Law, Volume I: The Law of the Sea, Oxford University
Press, 2014, pp. 304–41.
Yanai, S., ‘Can the UNCLOS Address Challenges of the 21st Century?’, German
Yearbook of International Law 57, 2014, 43–62.

67 According to the information received by the author from official sources, the Presidents of
Nicaragua and Honduras met on the 8th of October in 2007 and confirmed that both
states would accept the judgment and continue to negotiate for maintaining friendly rela-
tions between the two states.
22 Case concerning the Arbitral
Award made by the King of
Spain on 23 December 1906
(Honduras v. Nicaragua), 1960
Yoshifumi Tanaka

I Introduction
It is beyond serious argument that inter-state arbitration occupies an impor-
tant place within the international law of peaceful settlement of international
disputes. In his time-honoured publication, Le droit des gens, Emer de Vattel
stressed the role of arbitration in international dispute settlement, stating
that:

Arbitration is a very reasonable mode, and one that is perfectly conform-

able to the law of nature, for the decision of every dispute which does
not directly interest the safety of the nation.1

In Latin America, arbitration was accepted as a means of the settlement of

disputes, including even territorial issues, in many treaties concluded
between the mid-nineteenth and early twentieth centuries. In some cases,
however, the validity of the arbitral award was disputed.2 Case concerning the
Arbitral Award made by the King of Spain on 23 December 1906 (hereinafter
‘King of Spain case’) is one such case where the validity of an arbitral award
was at issue before the International Court of Justice (hereinafter ‘ICJ’ or
‘the Court’).3 An essential issue to be considered in this case concerns
reasons that may deprive the validity of an arbitral award. The King of Spain

1 de Vattel, Emmerich, The Law of Nations; or Principles of the Law of Nature, Applied to the
Conduct and Affairs of Nations and Sovereigns (translated by Joseph Chitty, Philadelphia,
T and J. W. Johnson and Co., Law Booksellers, 1853), 278, section. 329. For the original
French text, see de Vattel, E., Le droit des gens ou principes de la loi naturelle, Appliqués à
la conduite et aux affaires des Nations et des Souverains (The Classics of International Law
Washington 1916).
2 See Dissenting Opinion of Judge Urrutia Holguín in Case concerning the Arbitral Award
made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua) (hereinafter the
‘King of Spain case’), Judgment of 18 November 1960, I.C.J. Reports 1960, pp. 223–6.
3 Another case concerning the nullity of an arbitral award before the ICJ is Arbitral Award
of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment of 12 November 1991, I.C.J. Reports
1991, p. 53.
 Arbitral Award made by the King of Spain 263

case provides an important insight into the nullity of an arbitral award in rela-
tion to territorial disputes. Thus, this contribution will seek to succinctly
examine the King of Spain case.

II Course of the litigation

On 7 October 1894, Honduras and Nicaragua concluded the Gámez-Bonilla
Treaty in order to demarcate the boundary line between the two republics.4
Although the Mixed Boundary Commission established by Article I of the
Treaty succeeded in determining the boundary from the Pacific Coast to the
Portillo de Teotecacinte, it was unable to agree on the boundary from that
point to the Atlantic Coast.5 With regard to the latter section of the bound-
ary, the King of Spain, Alphonse XIII, handed down an arbitral award on 23
December 1906.6 In a Note dated 19 March 1912, however, Nicaragua chal-
lenged the validity and binding character of the award. As a consequence, a
dispute arose with regard to the award. Honduras and Nicaragua attempted
to settle the dispute by direct negotiation or through the good offices or
mediation of other states but to no avail. Thus, the Council of the
Organization of American States (OAS), at Honduras’s request, appointed
an investigating committee and issued a report recommending the ICJ as an
appropriate forum to settle the dispute. To this end, an ad hoc committee
appointed by the OAS Council drafted a proposal for an agreement to
submit the case before the ICJ. On 21 July 1957, the two parties reached an
agreement to submit the dispute to the ICJ.7
On 1 July 1958, Honduras instituted proceedings against Nicaragua
before the ICJ with regard to a dispute concerning the arbitral award made
by the King of Spain.8 By the application, Honduras requested the Court to
declare, inter alia, that Nicaragua is under an obligation to give effect to the
award.9 By contrast, Nicaragua solicited the Court to adjudge and declare
that the decision given by the King of Spain on 23 December 1906 did not
possess the character of a binding arbitral award and that the arbitral decision
was incapable of being executed by reason of its omissions, contradictions
and obscurities.10 In the King of Spain case, four issues in particular deserve

4 King of Spain case, Judgment, p. 199.

5 Ibid., p. 202,.
6 Ibid. See also The Boundary Case between Honduras and Nicaragua, 23 December 1906,
RIAA 11, pp. 101–117.
7 King of Spain case, Judgment, p. 203. See also Schulte, C., Compliance with Decisions of the
International Court of Justice, Oxford: Oxford University Press, 2004, p. 127.
8 King of Spain case, Judgment, pp. 194–5. Roberto Ago and Francisco Urrutia Holguín
were respectively chosen as Judges ad hoc by the government of Honduras and the govern-
ment of Nicaragua.
9 Ibid., p. 204. See also I.C.J., Memorial submitted by the Government of the Republic of
Honduras, King of Spain case, p. 62.
10 King of Spain case, Judgment, pp. 204–5. See also I.C.J., Counter-Memorial submitted by
the Government of the Republic of Nicaragua, King of Spain case, pp. 204–5.
264 Yoshifumi Tanaka

consideration: (i) the validity of the designation of the King of Spain as arbi-
trator, (ii) the lapse of the Gámez-Bonilla Treaty, (iii) the conditions that
nullify the arbitral award on 23 December 1906, and (iv) the incapability of
execution of the arbitral award. The following sections will address these four
issues, respectively.

III The validity of the designation of the King of Spain

as arbitrator
The first issue to be examined pertains to the validity of the designation of
the King of Spain as arbitrator. In this regard, Nicaragua argued that the
requirements in relation to the composition of an arbitral tribunal set out in
Articles III and V of the Gámez-Bonilla Treaty were not complied with in
the designation process.11 Under Article III of the Treaty, an arbitral tribunal
shall be composed of three members: one representative for Honduras and
another for Nicaragua and one Member of the foreign Diplomatic Corps
accredited to Guatemala, the last to be elected by the first two or chosen by
lot.12 The record showed that on 2 December 1899, the two national arbi-
trators designated the Mexican Chargé d’affaires in Central America,
Federico Gamboa, as third member of the arbitral tribunal. As he was
recalled from Guatemala in April 1902, the two national arbitrators desig-
nated the Mexican Minister to Central America, Cayetano Romero, as third
member of the tribunal on 21 August 1902. However, he left Guatemala
soon after for health reasons. At a meeting on 2 October 1904, the two
national arbitrators met with the Spanish Minister to Central America and,
on this occasion, the King of Spain was designated as the sole arbitrator. In
this regard, Nicaragua contended that before the two national arbitrators
could proceed to this designation, it was necessary to exhaust the member-
ship of the foreign Diplomatic Corps accredited to Guatemala and,
thereafter, to come to an agreement on any other foreign or Central
American public figure for the purpose of constituting a three-member arbi-
tral tribunal.13
The Court was not persuaded by Nicaragua’s argument. In the Court’s
view, it must be established by positive proof whether the procedure
prescribed in the Treaty had not been complied with. Nonetheless, no such
proof had been placed before the Court. According to the Court, it was
within the power of the arbitrators to interpret and apply the articles in ques-
tion in order to discharge their function of organising the arbitral tribunal.
The Court therefore concluded that the requirements of the relevant articles
of the Gámez-Bonilla Treaty, as interpreted by the two national arbitrators,
had already been complied with when it was agreed by common consent that

11 Ibid., p. 168, para. 92 et seq.

12 King of Spain case, Judgment, p. 200.
13 Ibid., pp. 205–6.
 Arbitral Award made by the King of Spain 265

the King of Spain be designated as arbitrator at the meeting of 2 October

1904.14
The Court’s view appears to leave some room for discussion. Originally,
the arbitral tribunal set out by the Gámez-Bonilla Treaty was designed to be
composed of three arbitrators. Hence, some doubts might arise whether the
establishment of the arbitral tribunal that consists of the sole arbitrator
should be contrary to Article III of the Gámez-Bonilla Treaty. In consider-
ing this issue, the 1950 Peace Treaties case must be noted.15 In this case, one
of the questions submitted to the ICJ related to the composition of the
commission established by the Peace Treaties with Bulgaria, Hungary and
Romania of 1947.16 In its advisory opinion of 1950, the Court held that the
constitution of a two-member commission, rather than instituting a three-
member commission according to the provisions of the treaties, is not the
designated commission that caters for the Peace Treaties. Nor would the
decisions of a commission of two members have the same degree of moral
authority as those of a three-member commission.17 It therefore found that
the UN Secretary-General was unauthorised to appoint the third member of
the commission upon the request of the other party to a dispute, should one
party fail to appoint a representative to a Treaty Commission under the Peace
Treaties.18 In light of the Peace Treaties advisory opinion, there appears to be
some scope to reconsider the question whether a one-member arbitral tribu-
nal was not the intended arbitral tribunal that the Gámez-Bonilla Treaty
envisioned.19
In any case it was only on 19 March 1912 when Nicaragua, for the first
time, challenged the validity of the designation of the King of Spain as arbi-
trator. According to the Court, no question as to either the validity of his
designation as arbitrator or his justification as such was at any time raised in
the arbitral proceedings before the King. The Court thus held that it was
unable to accept the Nicaraguan allegation that the designation of the King
of Spain as arbitrator was invalid.20

IV The lapse of the Gámez-Bonilla Treaty

The second contention of Nicaragua was that the Gámez-Bonilla Treaty had
lapsed before the King of Spain agreed to act as arbitrator.21 Nicaragua

14 Ibid., p. 206.
15 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion
of 18 July 1950 (the Second Phase), I.C.J. Reports 1950, p. 221.
16 Ibid., pp. 223–4.
17 Ibid., p. 228.
18 Ibid., p. 230.
19 Separate Opinion of Sir Percy Spender, King of Spain case, Judgment, p. 219.
20 King of Spain case, Judgment, p. 207.
21 I.C.J., Counter-Memorial submitted by the Government of Nicaragua, King of Spain case,
p. 175, para. 111 et seq.
266 Yoshifumi Tanaka

argued that the Treaty took effect on 7 October 1894, the date on which it
was signed, and that it lapsed ten years later, namely, on 7 October 1904, in
accordance with Article XI. It was on 17 October 1904 when the King of
Spain agreed to act as arbitrator. According to Nicaragua, his designation as
arbitrator took effect ten days after the treaty had ceased to be in force. By
contrast, Honduras argued that the treaty did not come into effect until the
exchange of ratifications between the parties on 24 December 1896.
According to Honduras, the ten-year period laid down in Article XI of the
Treaty expired on 24 December 1906, and as a consequence, the award was
granted during the currency of the treaty.22
In this regard, the Court took the position that the intention of the parties
was that the treaty should come into force on the date of exchange of ratifi-
cations and that the ten-year period specified in Article XI should commence
from that date, even though there was no expressed provision in the treaty
with regard to the date on which it was to come into force.23 In fact, on the
very day the treaty expired, the president of Nicaragua stated in his telegram
to the Spanish Minister to Central America that it would be satisfactory and
an honour for Nicaragua if the King of Spain would accept his designation
as arbitrator to settle the boundary dispute between Honduras and
Nicaragua.24 According to the Court, ‘this furnishes a clear indication that
Nicaragua did not regard the treaty as having lapsed on that day’.25 In rela-
tion to this, the Court stressed the following facts: (i) the designation of the
King of Spain as arbitrator was freely agreed to by Nicaragua; (ii) no objec-
tion was made by Nicaragua to the jurisdiction of the King of Spain as
arbitrator either on the ground of irregularity in his designation as arbitrator
or on the ground that the Gámez-Bonilla Treaty had lapsed even before the
King of Spain had signified his acceptance of the office of arbitrator; and (iii)
Nicaragua fully participated in the arbitral proceedings before the King. The
Court therefore concluded that the Gámez-Bonilla Treaty was in force until
24 December 1906 and that the King’s acceptance on 17 October 1904 of
his designation as arbitrator was well within the currency of the treaty; and
that it was no longer open to Nicaragua to rely on either of these contentions
as furnishing a ground for the nullity of the award.26 Furthermore, the Court
held that Nicaragua, by expressed declaration and by conduct, recognised
the award made by the King of Spain as valid and was no longer able to
rescind upon that recognition and challenge the validity of the award.27

22 King of Spain case, Judgment, p. 208. See also I.C.J., Reply submitted by the Government of
Honduras, King of Spain case, p. 522, para. 102.
23 In this regard, it may be relevant to note that Article VIII of the Gámez-Bonilla Treaty
required ‘constitutional ratifications’. Ibid., p. 522, para. 104.
24 King of Spain case, Judgment, p. 208.
25 Ibid., p. 209.
26 Ibid.
27 Ibid., p. 213.
 Arbitral Award made by the King of Spain 267

It is of particular interest to note that the conduct of Nicaragua consti-

tuted the key element in reaching the conclusion. Here some consideration
must be given to the doctrine of acquiescence and the related doctrine of
estoppel. As the Chamber of the ICJ in the 1984 Gulf of Maine case stated,
the concepts of acquiescence and estoppel both derive from the fundamen-
tal principles of good faith and equity.28 According to the Chamber,
‘acquiescence is equivalent to tacit recognition manifested by unilateral
conduct which the other party may interpret as consent, while estoppel is
linked to the idea of preclusion’.29 While the distinction between acquies-
cence and estoppel is not necessarily clear-cut, it is argued that acquiescence
presumes consent to have existed on the basis of the factual circumstances,
whereas estoppel recognises the possibility that consent was non-existent in
light of any fact within its actual or presumed knowledge.30 It can also be
considered that the passage of time is likely to be more important in the cases
of acquiescence than in cases of estoppel.31
In relation to this, Bowett has enumerated three essential elements of
estoppel: (i) the meaning of the statement must be clear and unambiguous;
(ii) the statement or representation must be voluntary, unconditional and
authorised; and (iii) reliance in good faith upon the representation of one
party by the other party to his detriment.32 These elements were confirmed
by the ICJ in the 1969 North Sea Continental Shelf judgment.33
Furthermore, according to Fitzmaurice, the essential condition for the oper-
ation of the rule of preclusion or estoppel is that the party invoking the rule
must have ‘relied upon’ the statements or conduct of the other party, either
to its own detriment or to the other’s advantage.34 In fact, the Chamber of
the ICJ, in the El Salvador/Honduras case, also considered ‘a statement or
representation made by one party to another and reliance upon it by that
other party to his detriment or to the advantage of the party making it’ as an
essential element of estoppel.35

28 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States
of America), Judgment of 12 October 1984, I.C.J. Reports 1984, p. 305, para. 130.
29 Ibid.
30 Thirlway, H., The Law and Procedure of the International Court of Justice: Fifty Years of
Jurisprudence, Vol. I: Oxford: Oxford University Press, 2013, pp. 40–41.
31 Ibid., p. 41.
32 Bowett, D. W., ‘Estoppel before International Tribunals and Its Relation to Acquiescence’,
British Yearbook of International Law 33, 1957, pp. 188–94. This view was echoed by
Kolb. See Kolb, R., La bonne foi en droit international public: Contribution à l’étude des
principes généraux de droit, Paris: PUF, 2000, pp. 360 et seq.
33 North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of
Germany v. Netherlands), Judgment of 20 February 1969, I.C.J. Reports 1969, p. 26, para. 30.
34 Temple of Preah Vihear (Cambodia v. Thailand), Separate Opinion of Sir Gerald
Fitzmaurice, Judgment of 15 June 1962, Merits, I.C.J. Reports 1962, p. 63.
35 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua interven-
ing), Judgment of 13 September 1990, Application by Nicaragua for Permission to Intervene,
I.C.J. Reports 1990, p. 118, para. 63.
268 Yoshifumi Tanaka

In the King of Spain case, the ICJ did not make an explicit reference to
either estoppel or acquiescence. In this regard, Judge ad hoc Urrutia Holguín
maintained that the theory of estoppel could not be invoked against
Nicaragua because it could not be said that Nicaragua’s attitude between
1906 and 1912 was the cause of Honduras believing that the award was
indeed accepted.36 Considering that the Court did not discuss any reliance by
Honduras on Nicaragua’s conduct, the more acceptable view appears to be
that the King of Spain’s judgment was thought to rely essentially on the
acquiescence of Nicaragua.37 The King of Spain case is curious in the sense
that more than 50 years elapsed between the arbitral award being made by
the King of Spain and the matter being brought to the ICJ. However, it is
relevant to recall that the validity of the King’s designation was challenged
five and a half years after the award. If the five and a half years were enough
to support a finding of acquiescence in the circumstance, a considerable
delay in instituting proceedings for settling the dispute is irrelevant.38

V Conditions to nullify the arbitral award made by the

King of Spain
An important factor in the King of Spain case relates to conditions to nullify
the arbitral award. In this regard, Nicaragua invoked three reasons that
deprived the validity of the award made by the King of Spain: (i) excess of
jurisdiction; (ii) essential error; and (iii) lack or inadequacy of reasons in
support of the conclusions arrived at by the arbitrator.39 Interestingly, similar
grounds for invalidity of arbitral awards were already indicated by Vattel.40
Excess of jurisdiction and essential error were also considered as reasons to
deprive the validity of arbitral awards in the resolution of Institut de droit
international of 1875.41 However, the Court did not accept the allegations
of Nicaragua for the following reasons.

36 Dissenting Opinion of Judge Urrutia Holguín in the King of Spain case, op. cit. n. 2, p.
236.
37 Thirlway, H., The Law and Procedure of the International Court of Justice: Fifty Years of
Jurisprudence, op. cit. n. 30, p. 41.
38 Ibid., pp. 41–2.
39 King of Spain case, Judgment, p. 210. See also I.C.J., Counter-Memorial submitted by the
Government of Nicaragua, King of Spain case, p. 184, para. 134 et seq; I.C.J., Rejoinder
submitted by the Government of Nicaragua, King of Spain case, p. 776, para. 61 et seq.
40 Vattel, Emmerich de, The Law of Nations; or Principles of the Law of Nature, Applied to the
Conduct and Affairs of Nations and Sovereigns, op. cit. n. 1, section 329. Concerning an
analysis of Vattel’s view on this subject, see Caflisch, L., ‘Vattel and the Peaceful Settlement
of International Disputes’, in Chetail, V., and Haggenmacher, P. (eds), Vattel’s
International Law in a XXIst Century Perspective, Leiden: Nijhoff, 2011, p. 264.
41 Institut de droit international, Session de La Haye (1875), Projet de règlement pour la
procédure arbitrale internationale, Article 27. Furthermore, under Article 35 of Model
Rules of Arbitral Procedure, the validity of an award may be challenged by either party on
one or more of the following grounds: (a) that the tribunal has exceeded its powers; (b)
 Arbitral Award made by the King of Spain 269

First, whereas Nicaragua contended that the arbitrator breached the rules
stipulated in paragraphs 3 and 4 of that Article that reflected the principle of
uti possidetis juris,42 the Court held that the complaint of Nicaragua was with-
out foundation inasmuch as the decision of the arbitrator was based on
historical and legal consideration in accordance with Article II (3) and (4) of
the Gámez-Bonilla Treaty.43 Nicaragua further argued that the arbitrator, in
the award of 1906, exercised his discretion in granting compensation in
order to establish a well-defined natural boundary line as provided for in
Article II (6) of the Treaty and that this discretion was vested in the Mixed
Boundary Commission and could not be exercised by the arbitrator.
Nicaragua thus contended that the arbitrator exercised a power, which he did
not possess.44 According to the Court, however, the rules specified in Article
II were intended not only for the guidance of the Mixed Commission to
which they expressly referred, but were also intended to furnish guidance for
the arbitration. There existed no convincing reasons in support of
Nicaragua’s view. The Court therefore ruled that the King of Spain did not
exceed the authority conferred upon him.45 Second, the Court considered
that there was no precise indication of essential error within the Nicaraguan
argument that would have the effect of nullifying the award.46 Third, the
Court held that the ground of inadequacy of reasons alleged by Nicaragua
was also without foundation for the award dealt in logical order and in some
detail with all relevant considerations and contained ample reasoning and
explanations in support of the arbitrator’s conclusions.47
In this regard, an issue arises to what extent the Court should examine the
substance of the arbitral award made by the King of Spain. As the Court
rightly observed, the award was not subject to appeal. The Court was called
upon to only decide whether the award was proved to be null and with
having no effect, not to pronounce on whether the award should be right or
wrong.48 Hence the Court took a formalistic approach while examining the

that there was corruption on the part of a member of the tribunal; (c) that there has been
a failure to state the reasons for the award or a serious departure from a fundamental rule
of procedure; and (d) that the undertaking to arbitrate or the compromis is a nullity.
Yearbook of the International Law Commission 2, 1958, p. 86.
42 I.C.J., Counter-Memorial submitted by the Government of Nicaragua, King of Spain case,
p. 182, para. 129 et seq; Case concerning the Arbitral Award made by the King of Spain on
23 December 1906 (Honduras v. Nicaragua), Declaration of Judge Moreno Quintana, I.C.J.
Reports 1960, pp. 217–8. See also Dissenting Opinion of Judge Urrutia Holguín, op. cit.
n. 3, p. 227.
43 King of Spain case, Judgment, p. 215.
44 Ibid.
45 Ibid.
46 Ibid.
47 Ibid., p. 216. However, Judge ad hoc Urrutia Holguín stated that the King of Spain
committed essential errors related to the exceeding of powers in the application of the uti
possidetis juris rule. Dissenting Opinion of Judge Urrutia Holguín, op. cit. n. 2, pp. 233–4.
48 King of Spain case, Judgment, p. 214.
270 Yoshifumi Tanaka

question whether the award relied on ‘historical and legal considerations’ or

whether it dealt with all relevant considerations ‘in logical order’. For the
Court, the manner of the examination of relevant materials is of utmost
importance in the award. Here it is noteworthy that ‘convincing reason’ or
‘precise indication’ was referred to by the Court as a criterion for determin-
ing the excess of jurisdiction and essential error.49 It appears that the ICJ set
out a high standard on this matter. According to the standard, it would be
difficult to prove that the arbitrator committed an essential error.

VI Incapability of execution of the arbitral award

Finally, Nicaragua contended that the award was incapable of execution by
reason of its omissions, contradictions and obscurities for the mouth of a
river was not a fixed point and cannot serve as a common boundary between
two states.50 However, the Court considered that the determination of the
boundary in this section should give rise to no difficulty.51 Nicaragua further
argued that the delimitation in the operative clause left a gap of a few kilo-
metres between the point of departure of the frontier line from the junction
of the Poteca or Bodega with the Guineo or Namaslí up to the Portillo de
Teotecacinte. In the Court’s view, however, the award did not contain any
gap in reference to the drawing of the frontier line between the junction of
the Poteca or Bodega with Guineo or Namaslí and the Portillo de
Teotecacinte. The Court did not consider that the award was incapable of
execution by reason of any omissions, contradictions or obscurities.52
In conclusion, the ICJ ruled, by fourteen votes to one, that the award
made by the King of Spain on 23 December 1906 was valid and binding and
that Nicaragua was under an obligation to honour its effect.53 Nonetheless,
the implementation of the judgment was not easy as Nicaragua had to with-
draw from an inhabited area where it had occupied for several decades. Faced
with practical difficulties in implementing the judgment, the Inter-American
Peace Committee offered assistance to the parties. In particular, it settled the
issues of demarcation and undertook a final inspection of the boundary
markers. In July 1963, nearly three years after the Court’s judgment, the
dispute over the arbitral award was eventually settled.54

49 Ibid., p. 215.
50 Ibid., p. 210.
51 Ibid., p. 216.
52 Ibid., pp. 216–7.
53 Ibid., p. 217.
54 Schulte, C., Compliance with Decisions of the International Court of Justice, op. cit. n. 7,
pp. 129–31; Merrills, J. G., ‘The International Court of Justice and the Adjudication of
Territorial and Boundary Disputes’, Leiden Journal of International Law 13, 2000, p. 899.
 Arbitral Award made by the King of Spain 271

Conclusions
On the basis of the above considerations, three points in particular merit
highlighting.
First, in the King of Spain case, the ICJ stressed the conduct of Nicaragua
as evidence that Nicaragua accepted the validity of the arbitral award made
by the King of Spain. According to the Court’s approach, the conduct of
parties to a dispute constitutes a key element when considering the validity
of arbitral awards.
Second, the ICJ is not a Court of Appeal of arbitration and its task was
limited to examine whether the award issued on 23 December 1906 was
proved to be a nullity, thereby having no effect. In examining the nullity of
arbitral awards, however, one should evaluate the substance of the award. In
this regard, the Court took a formalistic approach in the present case by
focusing on the manner of the examination of relevant materials in the
award.
Third, it is notable that the Court referred to ‘convincing reason’ or
‘precise indication of essential error’ as the criterion for determining the
nullity of arbitral award. However, the criterion is not an objective one. The
existence of ‘convincing reason’ or ‘precise indication’ is subject to a case-by-
case appreciation of the Court. In light of the limited number of case laws in
this matter, whether the criterion can be generalized needs careful consider-
ation.
Fourth, the role of international institutions in pre- and post-adjudicative
phases in the King of Spain dispute merits particular attention. At the pre-
adjudicative phase, the OAS can be said to have performed a valuable role in
encouraging the parties to refer the dispute to the ICJ. At the post-adju-
dicative phase, the Inter-American Peace Committee performed an
important role in facilitating cooperation between the disputing parties in
the implementation of the ICJ judgment. Thus, the King of Spain case
provides an interesting example with regard to the interaction between inter-
national adjudication and regional international institutions.55

Bibliography
Antunes, N. S. M., ‘Acquiescence’, in Wolfrum, R. (ed.), Max Planck Encyclopedia of
Public International Law (online edition).
Bowett, D. W., ‘Estoppel before International Tribunals and Its Relation to
Acquiescence’, British Yearbook of International Law 33, 1957, 176–202.
Caflisch, L., ‘Vattel and the Peaceful Settlement of International Disputes’, in
Chetail, V. and Haggenmacher, P. (eds), Vattel’s International Law in a XXIst
Century Perspective, Leiden: Nijhoff, 2011, pp. 257–66.

55 J.G. Merrills, International Dispute Settlement, 5th edn, Cambridge: Cambridge University
Press, 2011, pp. 274 et seq.
272 Yoshifumi Tanaka

Cottier, T. and Müller, J. P., ‘Estoppel’, in Wolfrum R. (ed.), Max Planck

Encyclopedia of Public International Law (online edition).
Das, H., ‘L’estoppel et l’acquiescement: assimilations pragmatiques et divergences
conceptuelles’, Revue Belge de Droit International 2, 1997, 207–634.
Kolb, R., La bonne foi en droit international public: Contribution à l’étude des prin-
cipes généraux de droit, Paris: Presses Universitaire de France, 2000.
MacGibbon, I. C., ‘The Scope of Acquiescence in International Law’, British
Yearbook of International Law 31, 1954, 143–86.
Merrills, J. G., ‘The International Court of Justice and the Adjudication of Territorial
and Boundary Disputes’, Leiden Journal of International Law 13, 2000, 873–901.
Merrills, J. G., International Dispute Settlement, Cambridge: Cambridge University
Press, 5th edn, 2011.
Oliver, C. T., ‘Case Concerning the Arbitral Award Made by the King of Spain on 23
December 1906 (Honduras v. Nicaragua). ICJ Reports, 1960, p. 192’, AJIL 55,
1961, 478–89.
Schulte, C., Compliance with Decisions of the International Court of Justice, Oxford:
Oxford University Press, 2004.
Thirlway, H., The Law and Procedure of the International Court of Justice: Fifty Years
of Jurisprudence, Vol. I, Oxford: Oxford University Press, 2013.
de Vattel, Emmerich, Le droit des gens out principes de la loi naturelle appliqués à la
conduit et aux affaires des nations et des souverains, Nouvelle edition, Paris:
Guillaumin et C(ie), Libraires, 1863 (reprint, Elibron Classics. 2005). The Law of
Nations; or Principles of the Law of Nature, Applied to the Conduct and Affairs of
Nations and Sovereigns (translated by Joseph Chitty), Philadelphia, T and J. W.
Johnson and Co., Law Booksellers, 1853.
23 Territorial and Maritime Dispute
(El Salvador/Honduras), 2002
Antonio Remiro Brotóns

I Basis of jurisdiction
The jurisdiction of the International Court of Justice (hereinafter ‘the Court’
or ‘ICJ’) was based on a Special Agreement signed on 24 May 1986, which
amounts to a compromise that settled a pactum de contrahendo duly inclu-
ded in the General Treaty of Peace of 30 October 1980 between El Salvador
and Honduras.1 Both countries had foregoing declarations accepting the
Court’s jurisdiction according to Article 36.2 of the Statute and were also
parties to the Pact of Bogotá.2 In order to prevent that any basis of jurisdi-
ction might enable Honduras to unilaterally demand El Salvador before the
ICJ, the latter proceeded to denounce the Pact on 24 November 1973 and
then, two days later, to modify its declaration accepting the Court’s jurisdi-
ction according to Article 36.2 of the Statute, thereby including drastic
limitations that affected all sorts of territorial disputes.

II The object of the dispute

The complexity of this case is due to its three dimensions: first, the land
boundary disputed over six different sectors; second, the sovereignty over
the islands of the Gulf of Fonseca; and, third, the determination of the legal
situation of maritime zones in and out the referred Gulf in the Pacific Ocean.

III A chamber instead of the full court

This was the first case in which Latin American countries requested the
Court to constitute an ad hoc chamber to adjudicate a dispute. The sole

1 General Peace Treaty between the Republics of El Salvador and Honduras (Lima, 30
October 1980, 21856 UNTS).
2 American Treaty on Pacific Settlement (Pact of Bogotá) (Bogotá, 30 April 1948, 30 UNTS
449). Honduras had registered its declaration of acceptance of the Court jurisdiction in
1948, with no conditions, renewing it successively. It had also ratified the Pact in 1950. El
Salvador, having ratified the Pact that same year, had formulated its declaration in 1930
with a reservation (under the Permanent Court of International Justice [PCIJ]) for an
indefinite lapse of time.
274 Antonio Remiro Brotóns

precedent was that of the delimitation of the maritime frontier in the area of
the Gulf of Maine (Canada/United States).3 It is only by means of an agree-
ment between the parties that a sitting of the full Court can be avoided. Such
an agreement may occur after a unilateral application,4 but it is logical – and
also confirmed in the practice of states – that the cases introduced by means
of a Special Agreement constitute the natural ground for the ad hoc cham-
bers.
The parties stated in their Special Agreement (Art. 1)5 their intention to
strictly control not only the number of sitting members but also the compo-
sition of this special chamber. The parties made clear that the three members
of the Court that had to compose the chamber should be those mentioned
in their joint proposal, together with the ad hoc judges, being one appointed
by each party – this agreement ‘being essential for the formation of the
Chamber’. However, this statement appeared hardly compatible with both
the Statute (Art. 26.2) and Rules of Court (Art. 17.2), since the Statute
requires only the approval of the parties as to the number of judges indicated
by the Court, and the Rules determine that the President of the Court will
ascertain the ‘views’ of the parties regarding the composition of the chamber
and shall report to the Court accordingly. Notwithstanding, the Court
remains sovereign in its decision and may exercise its prerogative in the
manner desired by the parties, thus keeping up appearances. This assumption
is what appeared to have actually occurred.
The chamber, with only one Latin American (Brazilian) member, did not
initially include a Spanish-speaking member, and it was only after the death
of the ad hoc judge chosen by Honduras that this situation was modified. The
inclusion in this case of one sole Spanish-speaking judge was, in the author’s
opinion, decisive for the drafting of the judgment, especially in relation to
the disputed sectors of the land boundary.

IV The judgment on the merits

The judgment rendered by the chamber is extremely long and difficult to
read and digest.6 This is a consequence of both the multiple dimensions of
the dispute submitted to the chamber and its very nature, especially with
reference to the land boundary, which constitutes two-thirds of the decision.
The chamber then ruled according to each of the points submitted by the

3 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States
of America), Judgment, I.C.J. Reports 1984, p. 246.
4 Elettronica Sicula S.p.A (ELSI) (United States of America v. Italy), Judgment, I.C.J. Reports
1989, p. 15.
5 Special Agreement to submit to the decision of the International Court of Justice the
terrestrial, insular and maritime border dispute existing between the two countries
(Esquipulas, 24 May 1986, 24358 UNTS).
6 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua interve-
ning), Judgment, I.C.J. Reports 1992, p. 351.
 Territorial and Maritime Dispute 275

parties. First, it considered the six sectors in dispute in the continent (the
bolsones); second, the legal situation of the islands of the Gulf; and, finally,
the legal situation of the maritime zones in and out of the Gulf. The judges
voted on fifteen points (six in relation to the land boundary; six regarding
the legal situation of the islands; three of the determination of the maritime
areas being in and out of the Gulf), eight of these were decided unanimously
and the remaining seven by a four-to-one majority.7 Judge Oda appended a
declaration and a dissenting opinion regarding the legal situation of the
waters inside and outside of the Gulf.8 Judges ad hoc Valticos9 and Torres
Bernárdez10 appended separate opinions, the latter being overly long and
very detailed.

A. The land boundary

The first task entrusted to the chamber was ‘to delimit the boundary line in
the zones or sections not described in Article 16 of the General Treaty of
Peace of 30 October 1980’ (Art. 1.1 of the Special Agreement). This task
referred to six disputed zones (named bolsones, due to their shape) that
amounted to approximately four hundred square kilometres.
The chamber had to decide ‘taking into account the rules of International
Law applicable between the Parties, including, where pertinent, the provi-
sions of the General Treaty of Peace’ (Art. 5 of the Special Agreement). The
principle of uti possidetis juris of 1821, the year in which Central America
gained independence from the Spanish Crown was neither mentioned in the
1986 Special Agreement nor in the General Treaty of Peace of 1980.
Nevertheless both parties agreed that the uti possidetis was the first, and, in
the case of Honduras, the sole principle to be applied. El Salvador added the
effectivités and what it called ‘arguments of a human nature’, under the aus-
pices of Article 26 of the General Treaty of Peace, expressly mentioned by
Article 5 of the Special Agreement when dealing with the applicable law.
The judgment’s most noteworthy paragraphs concerning the sectors of
the disputed land boundary are those contained in its introduction.11 There,
the chamber considers the scope and the importance conferred to uti possi-
detis juris, which is considered as an elusive principle, hidden within a jungle
of pronounced titles of Indian law, including civil, military and ecclesiastic,
also compromised by changes in the jurisdiction of provinces and municipa-
lities (alcald jurisdicti) over the centuries. The chamber had also to address:

7 Ibid., paras 430–32.

8 I.C.J., Dissenting Opinion of Judge Oda, Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening).
9 I.C.J., Separate Opinion of Judge Valticos, Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening).
10 I.C.J., Separate Opinion of Judge Torres Bernárdez, Land, Island and Maritime Frontier
Dispute (El Salvador/Honduras: Nicaragua intervening).
11 Ibid., para. 40–67.
276 Antonio Remiro Brotóns

(i) the notion and pertinence of certain dubious titles, particularly the ejida-
les (translated as ‘formal title-deeds to commons’); (ii) the role of the
effectivités and of the private property titles subsequent to independence (the
‘republican titles’); (iii) the relationship between titles and effectivités; (iv)
the acquiescence and the reconnaissance as capable of modifying situations
protected by uti possidetis; (v) the demographic factor; (vi) the localization of
resources; (vii) the consideration of the topographic features for drawing the
limits; (viii) the bond of the bolsones with the adjacent sectors in which the
boundary had been agreed; (ix) the proof elements; and, finally, (x) the rele-
vance of the negotiations between the parties, among other issues.
El Salvador placed trust above all in the ejidales titles as the best means to
prove the uti possidetis juris. This trust was misplaced as the chamber rejected
its pretension of transforming the limits of the Indian settlements, based on
these titles, in international boundaries, according to a peculiar interpreta-
tion of the uti possidetis principle that, as contented by El Salvador, had been
adopted by Article 26 of the General Treaty of Peace. The chamber stated
that ‘It was the administrative boundaries between Spanish colonial admini-
strative units, not the boundaries between Indian settlements as such, which
were transformed, by the operation of the uti possidetis juris, into internatio-
nal boundaries in 1821.’12 The extensive and documented considerations of
Judge Torres Bernárdez when outlining the wisdom of this criterion suggest
he exercised particular influence over the course of the chamber’s delibera-
tion.13
The chamber then presented a detailed application of the principles and
criteria stated below, sector by sector, leaving room for pragmatic solutions,
stretching concepts that melted like butter in the hands and thus invoking an
equity infra legem.14 The judicial truth may stifle the historical truth when
interpreting former institutions out of their own context. The uti possidetis
had finally became a convenient tool. The judges confessed their frustration:
‘uti possidetis juris is essentially a retrospective principle, investing as interna-
tional boundaries administrative limits intended originally for quite other
purposes.’15 And emphasized further on: ‘It is rather as if the disputed
boundaries must be constructed like a jig-saw puzzle from certain already cut
pieces so that the extent and location of the resulting boundary depends
upon the size and shape of the fitting piece.’16
The judges, like adventurers, had to deeply investigate an unexplored
region. Judge Torres Bernárdez, the only Spanish-speaking member of the
chamber, apparently assumed the lead.17

12 Ibid., para. 50.

13 I.C.J., Separate Opinion of Judge Torres Bernárdez, op. cit., paras 28–37.
14 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua interve-
ning), Judgment, op. cit., para. 68–322.
15 Ibid., para. 43.
16 Ibid., para. 44.
17 I.C.J., Separate Opinion of Judge Torres Bernárdez, op. cit., paras 8–37.
 Territorial and Maritime Dispute 277

The bolsones were awarded by unanimous decision, with the exception of

the fourth, being the largest of all sectors, with one dissenting vote, particu-
larly from the ad hoc Judge Valticos, proposed by El Salvador. On the other
hand, there was a singular reasoning as regards the sixth sector, because the
Spanish Crown’s administrative limit had been established by the course of
the Goascorán River, which flowed into the Gulf. According to El Salvador,
the Goascorán had abruptly changed its course due to a supposed avulsion.
El Salvador considered that the date in which this abrupt change had occur-
red was not decisive provided that it was subsequent to the date in which the
Goascorán was adopted as an administrative limit. Had it been previous to
1821 independence, the Spanish colonial law was to be applied. Had it been
after 1821, international law was to be applied. El Salvador maintained that
in either case, the rule was the same: the frontier had to remain on the old
course and not transition in tandem with the river.
The Court rejected El Salvador’s view considering it new and incompati-
ble with the history of the dispute, as it had only appeared in 1972. The
chamber understood that the avulsion had not been proved. After consulting
both the chart of the Gulf of Fonseca, which was drawn up at the end of the
eighteenth century, and a report of the expedition, which was provided by
Honduras, the chamber arrived at the conclusion that in 1821 the Goascorán
was already running along its present course. It observed that both docu-
ments failed to provide proof as regards the boundary, but they did present
proof of an actual geographical fact.18 The delimitation became more diffi-
cult due to the multiplicity of the river mouths that flow into the Gulf and
because of the importance afforded to the parties’ behaviour in previous
negotiations (this being mentioned as corroborative data by the chamber).
The approach decided by the chamber related to this bolsón, following
Honduras’ claim, was the fact that motivated El Salvador’s request for the
revision of the judgment some ten years later.

B. The legal situation of the islands

The second task entrusted to the chamber was ‘to determine the legal situa-
tion of the islands’ (Art. 2.2 of the Special Agreement). Again, for Honduras
this determination had to be exacted on the exclusive basis of the uti possi-
detis juris of 1821. Conversely for El Salvador, the effective possession had also
to be taken into account. El Salvador claimed the islands of the Gulf, except
for Zacate Grande, which pertained to Honduras, and the Farallones of
Cosigüina, to Nicaragua.
The chamber noted that the parties endowed it with jurisdiction to deter-
mine the legal situation of all the islands. The chamber understood,
however, that the said jurisdiction should be exercised only in relation to

18 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua interve-
ning), Judgment, op. cit., para. 316.
278 Antonio Remiro Brotóns

those islands (Meanguera and Meanguerita) in dispute at the date of the

signature of the Special Agreement. The chamber finally included the isle of
El Tigre.19
The chamber clearly asserted that the starting point to determine the
islands’ sovereignty should be in accordance to the 1821 uti possidetis juris,
taking into account the ‘colonial effectivités.’ Nevertheless, as long as it
proved impossible to ascertain a clear and categorical answer as to which
administrative entity the islands pertained, the chamber considered it parti-
cularly appropriate to look at the conduct of the new states during the period
immediately following independence as elements of probable acquiescence.
This reasoning finds support in Article 26 of the 1980 General Peace Treaty.
It however does not imply that effective possession prevails over uti posside-
tis juris. As a consequence, the chamber considered that ‘where the relevant
administrative boundary was ill-defined or its position disputed … the beha-
viour of the two newly independent States in the years following
independence may well serve as a guide to where the boundary was, either
in their shared view, or in the view acted on by one and acquiesced in by the
other.’20 The chamber then insisted that the islands were not terra nullius
and, thus, they were not susceptible of being acquired through occupation.
Nevertheless, it held that ‘the effective possession by one of the Gulf States
of any island of the Gulf could constitute an effectivité, though a post-colo-
nial one, throwing light on the contemporary appreciation of the legal
situation. Possession backed by the exercise of sovereignty may be taken as
evidence confirming the uti possidetis juris title.’21
The chamber rightly declared, as it could not be otherwise, that the isle of
El Tigre pertains to Honduras. With regards to Meanguera, the Salvadorian
historical titles were less clear than even El Salvador had anticipated.
However, the fragmentary and ambiguous characteristics of the said titles
were compensated with its effective possession by El Salvador, since
Honduras did not immediately react. Indeed, the conduct of Honduras vis-
à-vis earlier Salvadorian effectivités revealed ‘an admission, recognition,
acquiescence or other form of tacit consent to the situation.’22 Meanguera
was then allocated to El Salvador.23 Meanguerita, as an exiguous and

19 The dissenting judge Torres Bernárdez considered that this Honduran isle was not in
dispute in 1986 and, consequently, did not require to be judicially adjudicated.
20 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua interve-
ning), Judgment, op. cit., para. 345.
21 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua interve-
ning), Judgment, op. cit., para. 347. See I.C.J., Separate Opinion of Judge Torres Bernárdez,
op. cit., paras 78–90, 91–5 and 96–104.
22 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua interve-
ning), Judgment, op. cit., para. 364.
23 Judge Torres Bernárdez agreed with this allocation, but did not share the reasoning of the
chamber to that effect. See I.C.J., Separate Opinion of Judge Torres Bernárdez, op. cit.,
paras 105–59.
 Territorial and Maritime Dispute 279

uninhabited isle in close proximity to nearby Meanguera, followed it as a

dependency.24
From a certain viewpoint, Honduras was compensated as the chamber
decided to consider both islands ‘invisible’ or irrelevant when projecting the
Honduran continental coast over the closing line of the Gulf, thereby facili-
tating the oceanic condition of the country. A different solution would
otherwise have created an insurmountable barrier with regards to Meanguera
and Meanguerita. Considering the fact that the Salvadorian ad hoc judge,
Valticos, was Greek, it might be expected that he would be especially sensi-
tive with regards to the legal effects of the physical reality of the Salvadorian
islands; but the latter justified his position by stating that ‘the very peculiar
character of the Gulf of Fonseca as a historic bay with three riparians’ and
that: ‘the conclusions drawn by the Chamber are a consequence of that part-
icular situation and cannot, of course, be given a more general scope in
circumstances of a different kind’.25

C. The legal situation of the maritime spaces

The third and last task required from the chamber was ‘to determine the
legal situation of the … maritime spaces’ (Art. 2.2 of the Special
Agreement).26
The parties differed as to the interpretation of the jurisdiction granted to
the Court. The chamber would be competent to identify such spaces, their
number and nature, but would that also be the case when it came to the
process of delimiting the said spaces between the parties? El Salvador
answered with a categorical ‘no’; while Honduras said ‘yes’. The chamber
then had to decide.
The chamber attempted to find the common ground between the parties
by interpreting the text of Article 2.2 of the Special Agreement according to
its ordinary meaning in its own context: ‘the object of the verb “determine”
is not the maritime spaces themselves but the legal situation of these spaces.
No indication of a common intention to obtain delimitation by the Chamber
can therefore be derived from this text as it stands.’27 The chamber further
adds that this conclusion is also confirmed should the phrase be interpreted
in its broader context, by taking into account the Special Agreement as a
whole, and the 1980 General Treaty of Peace.28

24 Judge Torres Bernárdez, however, disagreed with this since there were neither Salvadorian
effectivité nor Honduran acquiescence in Meanguerita (I.C.J., Separate Opinion of Judge
Torres Bernárdez, op. cit., paras 169–176).
25 I.C.J. Separate Opinion of Judge Valticos, op. cit., p. 281.
26 Ibid., paras 372–420.
27 Ibid., para. 373.
28 Judge Torres Bernárdez maintained a different approach. See: I.C.J., Separate Opinion of
Judge Torres Bernárdez, op. cit., para. 184–207.
280 Antonio Remiro Brotóns

Starting from this basis, the chamber deals successively with the condition
of the Gulf of Fonseca and the maritime projection of riparian states outside
the Gulf.29

1. The condition of the Gulf of Fonseca

El Salvador championed the condominium (co-ownership) of the three ripa-
rian states within the Gulf. The judgment of the Central American Court of
Justice (hereinafter ‘CACJ’) dated 9 March 191730 served to reinforce its
position. El Salvador has indeed incorporated this judgment into its
Constitution and then requested the Court to confirm the dicta of the
CACJ. Honduras, however, not a party in those proceedings, protested by
rejecting the co-ownership; it argued instead the existence of a ‘community
of interests’ going beyond the first three nautical miles from the coast of each
riparian state. Moreover, it maintained the delimitation agreement with
Nicaragua, subscribed in June 1900. This ‘community of interests’ between
the riparian states produced, as stated by Honduras: ‘a perfect equality of
rights which has nevertheless never been transformed by the same States into
a condominium.’ But, as the chamber countered, ‘it seems odd … to postu-
late a community of interest regime as an argument against a condominium
regime, for a condominium is almost an ideal juridical embodiment of the
community of interest’s requirements.’31
It is here that the chamber pays extraordinary attention to the 1917
judgment of the CACJ ‘as an important part of the Gulf’s history.’32 With
Judge Oda dissenting,33 the chamber decided that the Gulf was a historical
bay conjointly inherited from Spain by the three riparian republics: ‘there
seems no reason in principle why a succession should not create a joint
sovereignty where a single and undivided maritime area passes to two or
more new States.’34 The chamber understood this to be the meaning given
to the Gulf condominium or co-ownership referred to by the CACJ in 1917.
The chamber then adopted the same criterion from that of the 1917

29 Judge Oda however voted against, ‘as a result of his understanding of the law of the sea,
greatly at variance with the views underlying the Judgment’ (I.C.J., Dissenting Opinion of
Judge Oda, Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening), para. 1).
30 El Salvador v. Nicaragua, CACJ, Judgment of 9 March 1917, 11 Am. J. Int’l L. 674
(1917).
31 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua interve-
ning), Judgment, op. cit., para. 407.
32 Ibid., para. 387.
33 Judge Oda is very critical with the Chamber’s approach which abstained to dissect the
1917 judgment, thereby granting it an authority that it objectively lacked and thus conso-
lidating its mistakes (See I.C.J., Dissenting Opinion of Judge Oda, Land, Island and
Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), p. 732.).
34 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua interve-
ning), Judgment, op. cit., para. 399.
 Territorial and Maritime Dispute 281

judgment, taking the latter into account ‘as a relevant precedent decision of
a competent court and as a, in the words of Article 38 of the Court’s Statute,
“a subsidiary means for determination of rules of law”.’35 The joint owners-
hip remained valid, except for the exclusive three nautical mile sovereignty
belt from the coastal zone of each state and with the reservation of the deli-
mitation agreement signed in June 1900 between Honduras and Nicaragua,
which thus was accepted by El Salvador. It must be noted that the belt refers
to the continental coast, and in principle as such, the islands would not have
a belt of exclusive waters, irrespective of their width, in the absence of a ripa-
rians’ agreement. Otherwise, the right of innocent passage would be
recognized within the waters of the Gulf, as they are internal waters subject
to a particular historic regime.

2. The closing line of the Gulf

The Court assumed that the closing line of the Gulf was drawn between
Punta Amapala (El Salvador) and Punta Cosigüina (Nicaragua). This was
mentioned in the 1917 judgment of the Central American Court and was
recognized, in practice, by the three riparian states in the Gulf. The chamber
considered that the closing line of a historical bay where waters are internal
constitutes – as Honduras asserted – a base line of the territorial sea and title
of maritime zones away from the Gulf. The rights over the waters in the
central portion of said line were assigned to the three riparian states as a
result of the common appurtenance of the Gulf, this as long as they do not
mutually agree on a delimitation. This central portion is 13.75 nautical miles
long, excluding the first three nautical miles from Punta Amapala (El
Salvador) at one end, and from Punta Cosiguïna (Nicaragua) at the other.

3. The sovereign access of Honduras to the Pacific Ocean

Following the judgment’s delimitation of the six disputed sectors (the bolso-
nes), the Court upheld Honduran sovereign rights and jurisdiction over the
maritime spaces beyond the Gulf’s closing line. The length of the line, which
amounts to 19.75 maritime miles, would, per se, have been enough to keep
Honduras locked in the Gulf had an orthodox interpretation of the law of
the sea been upheld by the chamber. The Gulf-locked condition of
Honduras should have been strengthened by the screen effect of Salvadorian
Meanguera and Meanguerita. In this sense, El Salvador did nothing to favour
its interests by insisting on the thesis of the Gulf condominium. Its fidelity to
the concept was indeed fatal. This was not the case of Honduras when
exploiting the benefits of the Salvadorian plea for the condominium via the

35 Ibid., para. 403.

282 Antonio Remiro Brotóns

notion of ‘community of interests’, which, to a certain extent, was a masked

version of the same idea.
El Salvador contested the Court’s jurisdiction to rule on this matter, and
also the recognition of any of Honduras’ rights beyond the Gulf. The cham-
ber considered that the Special Agreement subscribed by the parties when
requested ‘to determine the legal situation of the maritime spaces’
empowered it to establish whether Honduras had oceanic rights, without
delimiting them with respect to its neighbours. According to the chamber,
the closing line of the Gulf was the base line of the territorial sea of the three
riparian states, thus attributing all to a shared central zone with rights to a
territorial sea, an exclusive economic zone and a continental shelf out of the
Gulf. Any such limits had yet to be established and would require mutual
agreement, according to the rules of international law. The chamber sustai-
ned that it was equitable to not to confine Honduras to the bottom of the
Gulf since it ‘has by far the longest coastline of the Gulf and only Gulf coast-
line facing the Ocean’.36
Maybe the Court should have refrained from deciding this point, by
applying the ‘indispensable third party’ principle, irrespective of the inter-
pretation given to the Special Agreement between El Salvador and
Honduras.

V The sequels of the procedure: the Nicaraguan

intervention
The maritime dimension of the dispute, thereby dealing with the legal condi-
tion of the Gulf and rights of the riparian states in the Pacific Ocean also
involved Nicaragua as a third state. This is the reason why it requested to
intervene in the present procedure. The terms according to which the said
intervention was accepted by the Court were established in the judgment
rendered on 13 September 1990.
As to the 1992 judgment, it referred briefly to the effect on Nicaragua in
its final paragraphs.37 The chamber considered that ‘it is correct that a State
permitted to intervene under Article 62 of the Statute, but which does not
acquire the status of party to the case, is not bound by the Judgment given
in the proceedings in which it has intervened.’38 The chamber concluded that
‘in the circumstances of the present case, this Judgment is not res judicata
for Nicaragua.’39 This point was not submitted to a vote, but both Judge

36 Ibid., para. 418. Judge Oda dissented from the majority and considered that the findings
of the chamber were ‘hardly tenable in the light of any rule, traditional or contemporary
of the law of the sea’ (I.C.J., Dissenting Opinion of Judge Oda, Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), para. 53).
37 Ibid., paras 421–4 and 369–71.
38 Ibid., para. 423.
39 Ibid., para. 424.
 Territorial and Maritime Dispute 283

Oda, in his declaration, and Judge Torres Bernárdez, in his separate

opinion,40 observed that irrespective of the res judicata, Nicaragua would be
bound by this judgment as it relates to the legal position of the maritime
zones within the Gulf.
This assumption was based on the idea that what is true for two shall also
be so for three. The Gulf of Fonseca cannot be considered as a historical bay
only for the parties involved in the case, this would be also applicable to the
third riparian state, alien to the case. Nevertheless, it may be argued whether
it was pertinent for the Court to exercise jurisdiction on this aspect of the
dispute which directly affected the legitimate interests of a third state for
which the relative effect of the judgment might not provide enough prote-
ction. It can only be suggested, as a mitigating circumstance, that Nicaragua
being the third riparian state in the Gulf, was obliged to adhere to the 1917
judgment of the CACJ which, as previously noted, influenced the chamber’s
decision. Certainly, the chamber refrained from any pronouncement on this
point by observing that Nicaragua was just a participant and not a party in
the proceedings. According to the chamber: ‘It does not appear, therefore,
that this Chamber is at present required now to pronounce upon whether
the 1917 judgment is res judicata between the States parties to it.’41
Notwithstanding, it could be suggested that this circumstance certainly influ-
enced the mood and mindset of the judges.
In conclusion, Nicaragua is not formally bound by the judgment of the
chamber, but this judgment as far as the maritime dimension is concerned,
introduced additional factors of instability and uncertainty that perhaps can
only be overcome via a three-sided negotiation or, eventually, through arbi-
tration or judicial remedy.

Bibliography
Decaux, E. (1992) “Le différend frontalier terrestre, insulaire et maritime (El
Salvador/Honduras), arrêt de la Chambre de la CIJ du 11 septembre 1992. La
délimitation terrestre”, AFDI, 38: 393–426.
Evans, M. (1992) ‘Case concerning the Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras): The Nicaraguan Intervention, The International and
Comparative Law Quarterly, Vol. 41, No. 4, 896–906.
Kohen, M. G. (1993) “L’uti possidetis revisité: l’arrêt du 11 septembre 1992 dans
l’affaire El Salvador/Honduras”, RGDIP, 97: 939–973.
Lucchini, L. (1992) “Le différend entre le Honduras et El Salvador devant La CIJ.
Aspects insulaires et maritimes”, AFDI, 38: 427–459.
Ratner, S. R. (1991) ‘Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras), Application to Intervene, The American Journal of
International Law, Vol. 85, No. 4, pp. 680–686.

40 I.C.J., Separate Opinion of Judge Torres Bernárdez, op. cit., para. 208.
41 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua interve-
ning), Judgment, op. cit., para. 402.
284 Antonio Remiro Brotóns

Rottem, G. (1993) ‘Land, Island and Maritime Frontier Dispute, The American
Journal of International Law, Vol. 87, No. 4, pp. 618–626.
Shaw, M. N. (1993) ‘Case concerning the Land, Island and Maritime Frontier
Dispute (El Salvador/Honduras: Nicaragua Intervening), Judgment of 11
September 1992, The International and Comparative Law Quarterly, Vol. 42, No.
4, pp. 929–937.
Part VI
Material contribution of
Latin American cases to
the development of
international law
Environmental law and activities
carried in the border area
This page intentionally left blank
24 Construction of a Road in Costa
Rica along the San Juan River
(Nicaragua v. Costa Rica), 2011
and Certain activities carried out
by Nicaragua in the border area
(Costa Rica v. Nicaragua), 2010
Ximena Fuentes and Mariana Durney

This chapter is concerned with two cases between Costa Rica and Nicaragua
before the International Court of Justice (hereinafter ICJ or ‘the Court’).
This is not the first time that these two countries have been before the Court.
Indeed, Nicaragua and Costa Rica are two frequent visitors to the ICJ.1
These two proceedings were joined in accordance with Article 47 of the
Rules of the Court. By its order of 17 April 2013 the Court decided to join
the two cases because, in its view, this allowed ‘to address simultaneously the
totality of the various interrelated issues raised by the Parties’.2 Indeed, the
two disputes revolve around activities conducted in the border area that
might have potential transboundary effects: the two states involved claim
that the other has violated its territorial sovereignty and the two cases deal
with allegations of transboundary environmental harm. Therefore, it is quite
clear that these cases are closely linked.
The purpose of this chapter is to discuss the main issues addressed by the
recent Judgment that the ICJ handed down on 16 December 2015. The two

1 Nicaragua and Costa Rica have been involved in four cases before the Court including
these two cases. The other two cases are: a) Armed Activities and b) Navigational Rights.
In 1986, in the context of the Central American crisis, Nicaragua accused Costa Rica of
assisting the Contras in their armed incursions in Nicaragua. The case was discontinued
since Nicaragua and Costa Rica and three other Central American states reached an agree-
ment to find a negotiated solution to their problems (The Esquipulas II process of
negotiations). The case is nevertheless important because Nicaragua invoked as a basis of
the Court’s jurisdiction the Pact of Bogotá, this being the second time in which the 1948
Pact of Bogotá had been invoked after 40 years of being a dormant treaty. The second case
is Navigational Rights in the River San Juan, in which Costa Rica demanded respect for its
right to navigate the San Juan for the purposes of commerce. The ICJ handed down its
decision on 13 July 2009.
2 Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
Joinder of Proceedings, Order of 17 April 2013, I.C.J. Reports 2013, p. 184.
288 Ximena Fuentes and Mariana Durney

principal questions that the parties submitted to the Court are: (i) the
delimitation of the boundary in the Atlantic sector of the San Juan River; and
(ii) the question whether or not Costa Rica complied with international law
when authorizing and undertaking the construction of a road along the San
Juan River. The following are some of the interesting problems involved in
these two cases: a) the interpretation of old boundary treaties and inter-
national awards in a context in which, over the years, the geography of the
region has been subject to dramatic change; b) the evolution of the rules of
environmental protection and their impact on the interpretation and appli-
cation of nineteenth-century treaties; and, c) questions of evidence and the
role of experts. During the proceedings both parties additionally requested
the Court to issue provisional measures. A number of interesting issues were
raised during those incidental proceedings and for that reason a section of
this chapter will be devoted to provisional measures.

I The delimitation of the boundary in the relevant area

The delimitation of the boundary between Costa Rica and Nicaragua in the
San Juan River was effected by the 1858 Jerez-Cañas Treaty. In this treaty
the parties accorded that the boundary runs along the right bank of the San
Juan River until its outlet in the Caribbean Sea.3 In addition, they agreed to
grant in perpetuity rights of navigation in the waters of the river belonging
to Nicaragua to Costa Rica for the purposes of commerce.4 Years after the
conclusion of the 1858 Treaty, Nicaragua aired discontent with the Treaty
and claimed that it was null. The dispute was resolved by President Cleveland
of the United States.5 The Cleveland Award of 1888 declared that the 1858
Treaty was valid. The parties also asked the arbitrator to interpret some
points of doubtful interpretation that had been raised by Nicaragua. With
regard to the relevant area, the Cleveland Award stated that:

The boundary line between the Republics of Costa Rica and Nicaragua,
on the Atlantic side, begins at the extremity of Punta de Castilla, at the
mouth of the San Juan de Nicaragua River, as they both existed on the
15th day of April 1858. The ownership of any accretion to said Punta de
Castilla is to be governed by the laws applicable to that subject.6

3 Article 2 of the Jerez-Cañas Treaty 1858. Text in: Certain Activities in the Border Area
(Costa Rica v. Nicaragua), Memorial of Costa Rica, Volume II, Annex I.
4 Article 5 of the Jerez-Cañas Treaty. With regard to the rights of navigation, Costa Rica
submitted an application against Nicaragua and the Court handed down its Judgment on
13 July 2009.
5 Award of the President of the United States in regard to the validity of the Treaty of Limits
between Costa Rica and Nicaragua of 15 July 1858, Decision of 22 March of 1888, in:
legal.un.org/riaa/cases/vol_XXVIII/189-236.pdf (accessed on 3 April 2016).
6 Ibid., para. 3 (1), p. 209.
 Costa Rica v. Nicaragua cases 289

In 1896, the parties agreed to establish a commission in charge of the

demarcation of the boundary. The commission included an engineer
appointed by the President of the United States, General Alexander, who was
mandated to resolve the differences between the parties that might emerge
during the demarcation process. Indeed, these differences did emerge and
were resolved by Alexander. By that time, changes had already occurred in
the geography of the area. The original Punta Castilla had been swept over
by the sea and, therefore, Alexander decided that:

I have accordingly made personal inspection of this ground, and declare

the initial line of the boundary to run as follows, to wit:

Its direction shall be due northeast and southwest, across the bank
of sand, from the Caribbean Sea into the waters of Harbor Head
Lagoon. It shall pass, at its nearest point, 300 feet on the northwest
side from the small hut now standing in that vicinity. On reaching
the waters of Harbor Head Lagoon the boundary line shall turn to
the left, or southeastward, and shall follow the water’s edge around
the harbor until it reaches the river proper by the first channel met.
Up this channel, and up the river proper, the line shall continue to
ascend as directed in the treaty.7

The interpretation of General Alexander’s decision is central for the resolu-

tion of the Certain Activities in the Border Area dispute. Nicaragua claimed
that the ‘first channel met’ referred to by Alexander is the caño or channel
that existed in 1896 and that it had attempted in recent years to clear this old
caño. Costa Rica contradicted Nicaragua and claimed that Nicaragua had
commenced to construct a new channel across the northern tip of Isla
Portillos in an illegal attempt to annex what is now Costa Rican territory in
violation of the 1858 Treaty, the 1888 Cleveland Award and the 1897–1900
Alexander Awards, respectively. In plain words, Costa Rica asserted that
Nicaragua had attempted to reopen a dispute that was already settled and
that it had created an artificial non-existent ex post facto dispute to justify the
occupation of Costa Rican territory.8
This type of dispute is far from being a novelty in the context of Latin
American boundaries. Despite the fact that Latin America has been inclined
to solve disputes through direct negotiations or arbitration, the truth is that

7 First Award of the Engineer-Umpire, under the Convention between Costa Rica and
Nicaragua of 8 April 1896 for the Demarcation of the Boundary between the two
Republics, Decision of 30 September 1897 in: legal.un.org/riaa/cases/vol_XXVIII/189-
236.pdf, p. 208 (accessed on 3 April 2016).
8 Certain Activities in the Border Area (Costa Rica v. Nicaragua), Oral Pleadings, speech by
Mr Marcelo Kohen, Public sitting held on Tuesday 14 April 2015, 10 am sitting, pp. 40 ff.
290 Ximena Fuentes and Mariana Durney

in the region there is a tendency to re-open old disputes.9 The poor

geographical knowledge at the time of the conclusion of boundary treaties
or of the drafting of arbitral awards might account as one of the reasons that
explains this tendency to re-open disputes in Central and South America.
When faced with disputes such as this, courts can expect that the arguments
of the parties will likely revolve around the following aspects: the res judicata
character of arbitral awards; the interpretation of the arbitrators’ intention;
the relevance of the conduct of the parties (if any); the value accorded to
maps; the importance of the principle of stability of boundaries; and, finally,
the impact that contemporary geographical knowledge might bear upon the
interpretation of old instruments or awards.
The Court could have taken the opportunity to deal with the various
interesting aspects of the territorial dispute in hand; however, the final
decision was mainly based on two elements: (i) the factual evidence
submitted by the parties and (ii) the interpretation of the purpose of the
1858 Treaty.
With regard to the impact of the geographical changes alleged by
Nicaragua, in particular, the existence of an old caño that was later covered
by the vegetation of the area, the Court weighed the evidence submitted by
the parties and rejected the arguments of Nicaragua. It decided that the
evidence did not allow the existence of an old caño to be established.10 This
factual conclusion was reinforced with a legal argument that emphasized that
the purpose of the 1858 Treaty was to grant to Costa Rica perpetual rights
of navigation in the San Juan River, which were linked to Costa Ricas’s
sovereignty of the right bank of the river. Nicaragua’s claim with regard to
the existence of an old caño would have deprived Costa Rica of sovereignty
over the right bank of the river.11
With regard to the effectivités invoked by the parties in the disputed terri-
tory, the Court stated that they could not affect the title over territory
resulting from the 1858 Treaty and the Cleveland and Alexander Awards.12
The Court may be criticized in that it did not stop to examine all the impli-
cations of the conduct of the parties. The conduct of the parties can modify
a pre-existing title to territory, whether by operation of a tacit agreement or
estoppel, as is illustrated in the Temple of Preah Vihear case.13

9 Fuentes, X., ‘Latin American States and the ICJ’, in Klein, N. (ed.), Litigating
International Law Disputes. Weighing the Options, Cambridge: CUP, 2014, p. 81.
10 Certain Activities in the Border Area (Costa Rica v. Nicaragua), Construction of a Road in
Costa Rica Along the San Juan River, (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports,
2015, para. 90.
11 Ibid., para. 91.
12 Ibid., para. 89.
13 The Temple of Preah Vihear (Cambodia v. Thailand), Judgment, I.CJ. Reports 1962.
 Costa Rica v. Nicaragua cases 291

II The environmental disputes: the environmental impact

of the dredging activities carried out by Nicaragua and
of the construction of a road by Costa Rica
Costa Rica claimed that the construction of a new channel in the river (which
Nicaragua describes as the cleaning of an existing one) and the dredging acti-
vities conducted by Nicaragua in the border caused significant harm to Costa
Rica. In addition, it claimed that Nicaragua breached its obligations under
general international law since it neither notified nor consulted about these
activities with Costa Rica, and because it did not conduct a proper trans-
boundary Environmental Impact Assessment (EIA). All these obligations are
part of general international law.
With regard to the obligation not to cause significant harm, the ICJ stated
in the Pulp Mills case that:

A State is thus obliged to use all the means at its disposal in order to
avoid activities which take place in its territory, or in any area under its
jurisdiction, causing significant damage to the environment of another
State. This Court has established that this obligation ‘is now part of the
corpus of international law relating to the environment.’
(Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
I.C.J. Reports 1996 (I), p. 242, para. 29)14

With regard to the obligation to notify and consult, there is a significant

amount of state practice to assert that this obligation has become customary
international law.15 And, in relation to the international EIA, the Court
stated in the Pulp Mills case that this is ‘a requirement under general inter-
national law where there is a risk that the proposed activity may have a
significant adverse impact in a transboundary context.’16
Nicaragua and Costa Rica agree that these are obligations pursuant to
general international law. They claimed, each in its turn, however, that there
is a lex specialis applicable to their own particular situation. In this line, with
regard to the works it undertook in the San Juan River, Nicaragua claimed,
on the one hand, that the dredging activities and the cleaning of the caños
are subject only to the 1858 Treaty, which is the exclusive applicable law to
the exclusion of general international law. As expected from a nineteenth-
century instrument, the 1858 Treaty contains very few substantive and
procedural obligations in relation to the protection of the environment.
On the other hand, Costa Rica claims that Nicaragua’s attempt to isolate
the 1858 Treaty from the rest of international law would be against the

14 Pulp Mills (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, para. 101.
15 Rieu-Clarke, A., ‘The obligation to notify and consult on planned measures concerning
international watercourses - learning lessons from recent international case-law’, Yearbook
of International Environmental Law 2013, p. 102.
16 Pulp Mills (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, para 204.
292 Ximena Fuentes and Mariana Durney

principles of treaty interpretation. According to Costa Rica, treaties must be

interpreted in the broader context of other rules of general international law
applicable between the parties. The recent award in the Kishenganga
Arbitration is apposite here:

It is established that principles of international environmental law must

be taken into account even when (unlike the present case) interpreting
treaties concluded before the development of that body of law. The Iron
Rhine Tribunal applied concepts of customary international environ-
mental law to treaties dating back to the mid-nineteenth century, when
principles of environmental protection were rarely if ever considered in
international agreements and did not form any part of customary inter-
national law. Similarly, the International Court of Justice in
Gabcikovo-Nagymaros ruled that, whenever necessary for the application
of a treaty, ‘new norms have to be taken into consideration, and … new
standards given proper weight.’ It is therefore incumbent upon this
Court to interpret and apply this 1960 Treaty in light of the customary
international principles for the protection of the environment in force
today.17

With regard to the construction of a road along the San Juan River by Costa
Rica, the lex specialis argument adopts the form of an exemption to the obli-
gation to conduct an EIA in view of an emergency situation. As stated by
Costa Rica during the oral hearings:

The road was an appropriate infrastructure measure to the threats faced

by Costa Rica at this time, not least in view of the need to mobilize its
police force, its emergency services, and, where the circumstances might
necessitate, mobilize the riparian population along the river.18

According to Costa Rican counsel, ‘[i]nternational law provides an emer-

gency exemption to the obligation to carry out an EIA’.19 Moreover, Costa
Rica claims that in this case the construction of the road does not pose a risk
of significant environmental damage and, therefore, that ‘the threshold for
preparing the EIA has not been reached’. It is clear that the obligation to
carry out an international EIA when certain activities pose a risk of signifi-
cant environmental harm is part of customary international law. However,

17 Indus Waters Kishenganga Arbitration (Pakistan v. India), Partial Award, 18 February

2013, para. 452.
18 Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
Oral Pleadings, speech by Mr Arnoldo Brenes, Public sitting held on Thursday 23 April
2015, para. 30.
19 Ibid., speech by Mr Marcelo Kohen, Public sitting held on Thursday 23 April 2015, para.
39.
 Costa Rica v. Nicaragua cases 293

international law lacks an adequate regulation of EIAs. Yet this was recog-
nized by the Court in the Pulp Mills case when it stated that the content of
an EIA depends on what is required by domestic law.20 Another fundamen-
tal problem in the operation of EIA concerns the assessment of the risk that
some might claim that cannot depend on the sole appreciation of the state
responsible for planning the activity, as Costa Rica appears to assert.
The Court’s decision is important because it clarified that this obligation
to carry out an EIA exists only where there is a significant risk of environ-
mental harm and that this risk should be assessed by the State responsible for
planning the activity.21 The immediate question should be: how do we know
that the assessment of the risk conducted by the State concerned has been
adequately performed? The obligation to notify and consult could play an
important role in this regard, however, the Court concluded that the obli-
gation to notify and consult also emerges only in case of a risk of significant
harm.22 The Court’s decision might have contributed to make environmen-
tal protection in the transboundary context somehow more difficult.

III Questions of evidence

Evidence is a prominent subject in cases concerning environmental issues. In
the Pulp Mills case, it was not only an important matter but also a contro-
versial one. In that case, experts of both sides appeared as counsel acting on
behalf of the parties. This was criticized as there was no opportunity to cross-
examine the experts and, therefore, the Court did not benefit from the
opportunity to confront points of view during the oral pleadings.23 Apart
from that, the Court itself was criticized for not making use of its power to
appoint independent experts under Article 50 of the Statute and Article 67
of the Rules of Court, having preferred instead to rely on the advice of ‘ghost
experts’ that were unknown to both the parties and to the general public.24
Yet, contentious cases that have come before the Court after the Pulp
Mills case indicate that the practice of the Court in this field has changed.
Indeed, in the Whaling in the Antarctic case 25 and in these two cases between
Costa Rica and Nicaragua, experts have appeared as party-appointed experts
and they have been subject to cross-examination. In its turn, the judges of
the Court have been actively addressing questions to the experts.

20 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010,
para. 205.
21 Certain Activities on the Border Area (Costa Rica v. Nicaragua), Construction of a Road in
Costa Rica Along the San Juan River, Judgment, I.C.J, Reports, 2015, para. 104.
22 Ibid. 105.
23 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Joint Dissenting Opinion Judges
Al-Khasawneh and Simma, para. 6 and 7.
24 Ibid., para. 14.
25 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J.
Reports 2014.
294 Ximena Fuentes and Mariana Durney

In the Certain Activities on the Border Area (Costa Rica v. Nicaragua)

there was also an additional interesting development concerning evidence.
Nicaragua requested the Court to exercise its power under Article 62 of the
Rules of Court and requested Costa Rica to produce, before the opening of
the oral proceedings, studies relating to impact of the dredging of the San
Juan River on the flow of the Colorado River.26

IV The requests for provisional measures

In total, the parties filed five requests for provisional measures during the
proceedings in the two cases under analysis. Both requests were based on
‘rights to sovereignty and territorial integrity’. In the first order on provisional
measures of 8 March 2011, the aspect of territorial sovereignty appeared more
prominent than the environmental element. The Court made clear that the
‘rights at issue in these proceedings derived from sovereignty claimed by the
parties over the same territory’.27 The Court was solely relying on the manner
in which the parties understood and portrayed their respective claims.
In this first order, the Court declined one of Costa Rica’s most important
requests, namely an order that Nicaragua should cease its dredging opera-
tions. The Court found that the evidence provided by Costa Rica was
insufficient to confirm a risk of irreparable prejudice to Costa Rica’s envi-
ronment and the imminence of such risk. The Court also declined to order
provisional measures with regard to the alleged construction of a new chan-
nel on the river, to the felling of trees and the dumping of sediment, all this
based on Nicaragua’s assertion that it had already finished the works in the
area of the caño. One might wonder whether this finding – along with a
subsequent order by which the presence of private persons in the area was
not prohibited28 paved the way for the events that followed.
In its order of 22 November 2013, the Court upheld Costa Rica’s request
on the basis of the evidence –which included satellite imagery – in relation
to the construction of two new canos (and a trench that almost reached the
sea) in the disputed area and the presence of Nicaraguan personnel, infra-
structure and equipment, including an army encampment, on the beach. In
view of all these facts, the Court ordered additional measures.29 It prohibited

26 The request was submitted on 4 January 2011 and Costa Rica produced the requested
document at its own initiative on 6 January 2011. See Certain Activities carried out by
Nicaragua in the Border Areas (Costa Rica v. Nicaragua), Provisional Measures, Order of
8 March 2011, I.C.J. Reports 2011, p. 12.
27 Ibid., p. 19.
28 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua);
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
Order of 16 July 2013, Provisional Measures, I.C.J. Reports 2013, p. 235.
29 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua);
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
Provisional Measures, Order of 22 November 2013, I.C.J. Reports 2013, p. 369.
 Costa Rica v. Nicaragua cases 295

any dredging and other activities in the disputed territory (in particular,
works of any kind on the two new canos); it ordered Nicaragua to fill the
trench on the beach (within two weeks) and to immediately inform the
Court of the completion of that work and submit a report (in one week); it
ordered the removal of all Nicaraguan personnel (civilian, police or security)
from the disputed territory and of any private persons under Nicaraguan
jurisdiction or control; and, finally, it imposed upon the parties the duty to
provide regular information on compliance with the measures decreed (at
three-month intervals). The reasons given by the Court to justify the
prescribed provisional measures suggest that the Court was more concerned
with the protection of the territorial sovereignty of Costa Rica than with the
protection of the environment itself.30
On the other hand, the provisional measures sought by Nicaragua in the
Construction of a Road in Costa Rica along the San Juan River (Nicaragua
v. Costa Rica) case were more environmentally motivated. In its request for
provisional measures Nicaragua sought that Costa Rica immediately and
unconditionally provided an EIA and other technical reports. Nicaragua also
requested the implementation of various urgent measures that could
contribute to eliminate or significantly reduce the sedimentation of the river
due to the construction of the road. Nicaragua further requested an order
from the Court to ban Costa Rica from reassuming all construction activities
on the road while the Court was seized of the case.31
On 13 December 2013, the Court decided that the circumstances, as
presented to it, were not such to require the exercise of its power to indicate
provisional measures. Firstly, regarding the EIA the Court deemed that it
could not decide on this issue at this stage and that this was a decision for
the merits.32 Secondly, the Court rejected the other provisional measures
sought by Nicaragua (all of them linked to the right to be free from trans-
boundary harm), based on the inconclusiveness of the evidence.33 Ironically,
it was precisely the lack of an EIA that made the proof of any existing risk
more difficult to scrutinize.
Another interesting feature of the proceedings on provisional measures is
the monitoring of their implementation. On the two occasions in which
provisional measures were granted, the Court imposed on the parties the
obligation to report on their compliance. Although the possibility of request-
ing information from the parties on any matter connected with the

30 When assessing the plausibility of the rights invoked and the linking element, the Court
stated that any environmental harm would infringe Costa Rica’s alleged territorial rights
(ibid., p.360) and that the construction of the caños could affect Costa Rica’s rights of
sovereignty, as well as ‘environmental rights connected thereto’ (ibid., p. 361).
31 Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica);
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Provisional Measures, Order of 13 December 2013, I.C.J. Reports 2013, p. 401.
32 Ibid., p. 404.
33 Ibid., p. 407.
296 Ximena Fuentes and Mariana Durney

implementation of provisional measures is explicitly set forth in Article 78 of

the Rules of Court, this power has only recently been put into practice by the
Court.34
The order of 22 November 2013 is quite remarkable in this respect. First,
it imposed the duty for Nicaragua to inform as soon as it completed the fill-
ing works that were prescribed. Nicaragua was granted specific and very
short time to discharge this duty. Secondly, the order imposed a duty upon
both parties to regularly inform the Court, at three-month intervals, as to
their compliance with the provisional measures.35
Finally and inextricably connected with the above, there is the issue of the
consequences that should follow non-compliance with provisional measures.
The Court reiterated in its orders the binding nature of the provisional meas-
ures and that the question of compliance by both parties may be a matter to
be considered in its findings on the merits. In its final submissions, Costa
Rica requested the Court to adjudge and declare that Nicaragua should ‘pay
all the costs and expenses incurred by Costa Rica in requesting and obtain-
ing the Order on Provisional Measures of 22 November 2013 … on a full
indemnity basis’.36 Costa Rica also included a general request for reparations
in the following terms: to ‘provide satisfaction so to achieve full reparation
of the injuries caused to Costa Rica in a manner to be determined by the
Court’.
In its judgment of 15 December 2015, the Court addressed the issue of
the infringement of provisional measures and the consequential remedies.
First, the Court declared by unanimity, that Nicaragua had breached the
Order of March 2011 by excavating two caños in 2013 and by establishing a
military presence in the disputed territory. Regarding reparation for such a
breach, the Court took the view that the aforesaid declaratory finding
sufficed in this respect and that it should be considered as ‘adequate satisfac-
tion’ for the non-material injury.37
In a rather puzzling way, the Court continued to reject the specific
submission made by Costa Rica with respect to the costs and expenses which
she incurred by asking new provisional orders due to the lack of compliance

34 The first time that the Court requested an Implementation Report was in the Application
of the International Convention on the Elimination of all Forms of Racial Discrimination
(Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, I.C.J.
Reports 2008, p. 399.
35 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua);
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
Provisional Measures, Order of 22 November 2013, I.C.J. Reports 2013, p. 370.
36 I.C.J. Pleadings, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica
v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua
v. Costa Rica),CR 2015/14, Final Submissions of Costa Rica, (f and d), p. 70.
37 Certain Activities carried out by Nicaragua in the Border Areas (Costa Rica v. Nicaragua),
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
Judgment, I.C.J. Reports 2015, p. 54.
 Costa Rica v. Nicaragua cases 297

by Nicaragua with the first ones. The Court began by conceding that Costa
Rica was entitled to receive compensation for the material damage caused by
Nicaragua’s failure to comply with its obligations (including the breach of
the provisional measures, as it is clear from para. 142). Then, the Court
recalls that it has the power to set aside the rule enshrined in Article 64 of
the Statute on the payment of the costs. Further, the Court acknowledges
that Costa Rica had to, as a matter of necessity, engage in new proceedings
on provisional measures on account of Nicaragua’s breach. However, after all
this reasoning, the Court reaches the conclusion that ‘an award of costs to
Costa Rica … would not be appropriate’. There is no further elaboration.
The joint Declaration of Judges Tomka, Greenwood, Sebutinde and ad hoc
Dugard regrets that the Court failed to develop a satisfactory reasoning in its
decision not to award costs to Costa Rica.

Bibliography
X. Fuentes, ‘Latin American States and the ICJ’, in N. Klein (ed.), Litigating
International Law Disputes: Weighing the Options, (Cambridge University Press)
2014; pp. 79–105.
A. Rieu-Clarke, ‘The obligation to notify and consult on planned measures concer-
ning international watercourses: learning lessons from recent international
case-law’, Yearbook of International Environmental Law 2013; pp. 102–130.
25 Dispute regarding Navigational
and Related Rights (Costa Rica
v. Nicaragua), 2005
Martin Dawidowicz

I Introduction
Costa Rica and Nicaragua both gained independence from Spanish colonial
rule in 1821. Shortly after independence, Costa Rica and Nicaragua,
together with El Salvador, Guatemala and Honduras decided to establish the
Federal Republic of Central America. The Federal Republic of Central
America would be a short-lived union: it soon encountered insurmountable
problems and was dissolved in 1839 after Costa Rica and Nicaragua had
seceded as independent states in the previous year. A period of instability
followed in Nicaragua. During the mid-1850s, war broke out between Costa
Rica and Nicaragua. At the termination of hostilities, the two countries
resolved to settle outstanding bilateral matters, relating, inter alia, to their
common boundary, to the navigational regime on the San Juan River and to
the possibility of building an inter-oceanic canal across the Central American
isthmus. After two failed attempts in 1857, Costa Rica and Nicaragua,
through the mediation of the Salvadoran Foreign Minister, finally concluded
an agreement by entering into the 1858 Treaty of Territorial Limits (Treaty
of Limits).1 Thus, the Treaty of Limits established the present boundary
between Costa Rica and Nicaragua.
The Treaty of Limits is not an ordinary boundary treaty. It is an example
par excellence of a treaty establishing a boundary regime.2 Article II of the
Treaty of Limits fixed the course of the boundary between Costa Rica and
Nicaragua from the Pacific Ocean to the Caribbean Sea.3 Part of the border
between the two countries runs along the right bank (i.e. the Costa Rican
side) of the San Juan River; namely, from a point three miles below Castillo

1 See generally Dispute regarding Navigational and Related Rights (Costa Rica v.
Nicaragua), Judgment, I.C.J. Reports 2009, p. 213 at 226–31, paras 15–28; Treaty of
Territorial Limits, Costa Rica and Nicaragua, San José, 15 April 1858, reproduced in ibid.,
Costa Rica’s Application, p. 20 (English translation).
2 Compare Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua),
op. cit., n. 1, Verbatim Record, 9 March 2009, CR 2009/6, p. 15, para. 30 (Mr Crawford
on behalf of Costa Rica), pp. 38–9, paras 7–8 (Mr Caflisch on behalf of Costa Rica).
3 Treaty of Territorial Limits, op. cit., n. 1 (Art. II).
 Navigational and Related Rights 299

Viejo, a small town in Nicaragua, to the end of Punta de Castilla, where the
river enters the Caribbean Sea. Article VI of the Treaty of Limits contained
the essential bargain of the territorial settlement: it conferred on Nicaragua
full and exclusive sovereignty over the entire course of the San Juan River, in
exchange for which Costa Rica was granted a perpetual right of free naviga-
tion ‘con objetos de comercio’ on that approximately 87 mile-long stretch of
the river, which constitutes the border between the two countries.4 Treaties
involving territorial settlements are by their nature characterized by perma-
nence and the objective of achieving finality and stability. The Treaty of
Limits is no exception.5 And yet the boundary regime established between
Costa Rica and Nicaragua in the Treaty of Limits appears to be one of the
most litigated bilateral treaties in the history of the International Court of
Justice (hereinafter ‘the ICJ’ or ‘the Court’).
During the late-nineteenth century, Nicaragua had on various occasions
challenged the validity of the Treaty of Limits and, as a result, the parties
submitted the question to arbitration by US President Cleveland. It was
additionally agreed that, if the Treaty of Limits was found to be valid,
President Cleveland should also decide whether Costa Rica could navigate
the San Juan River with vessels of war or of the revenue service. In the
Cleveland Award of 22 March 1888, President Cleveland held that the
Treaty of Limits was valid. With reference to Article VI of the Treaty of
Limits, President Cleveland further stated that Costa Rica did not have the
right of navigation on the San Juan River with vessels of war, although it
could navigate with such revenue service vessels as may be connected to navi-
gation ‘for the purposes of commerce’.6
On 5 August 1914, Nicaragua signed a treaty with the US (the
Chamorro-Bryan Treaty)7 that granted it perpetual ownership rights for the
construction and maintenance of an inter-oceanic canal through the San
Juan River. On 24 March 1916, Costa Rica filed a case against Nicaragua
before the Central American Court of Justice8 (CACJ) alleging that
Nicaragua had breached its obligation to consult with it prior to entering
into any canalization project pursuant to Article VIII of the Treaty of Limits.
On 30 September 1916, the CACJ ruled that, by not consulting Costa Rica,
Nicaragua had violated rights guaranteed to it under the Treaty of Limits and

4 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), op. cit., n.
1, p. 229, para. 19.
5 Ibid., pp. 243–4, paras 68–9.
6 Ibid., pp. 229–30, para. 20.
7 Convention for the Construction of a Canal by the River San Juan, United States and
Nicaragua, Washington, DC, 5 August 1914, 220 CTS 215.
8 The Central American Court of Justice was created by the General Treaty of Peace and
Amity, Costa Rica, Guatemala, Honduras, Nicaragua and El Salvador, Washington, DC, 20
December 1907, 206 CTS 63. See further Part I, Chapter III (for a discussion of the
Central American Court of Justice).
300 Martin Dawidowicz

the Cleveland Award.9 These early disputes in relation to the boundary

regime in the Treaty of Limits have not settled matters. The validity of the
Treaty of Limits may no longer be in question, but it appears that its inter-
pretation nevertheless remains in doubt, as it is still the subject of litigation
before the Court.
On 29 September 2005, Costa Rica instituted proceedings before the ICJ
against Nicaragua with respect to a dispute concerning navigational and
related rights of Costa Rica on the San Juan River.10 The Court, in its 2009
judgment in the Navigational and Related Rights case, upheld many of
Costa Rica’s submissions on the scope and extent of its navigational and
related rights on the San Juan River whilst also recognising Nicaragua’s
broad power of regulation of navigation. But matters did not end there. The
Navigational and Related Rights case has triggered a decade of litigation
before the Court with two additional cases (later joined) – Certain Activities
carried out by Nicaragua in the Border Area and Construction of a Road in
Costa Rica along the San Juan River11 – at least in part involving alleged addi-
tional breaches of the Treaty of Limits and alleged non-compliance with the
Court’s judgment in Navigational and Related Rights.12 And still further
disputes about the Treaty of Limits (including with respect to its Article IV
regarding the common Bays of San Juan del Norte and Salinas) cannot be
excluded.13
The preamble to the Treaty of Limits between Costa Rica and Nicaragua
explains that it was designed to ‘put an end to all the differences which have
obstructed the perfect understanding and harmony that must prevail among

9 See Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), op. cit.,
n. 1, p. 230, para. 22. Further: ‘Costa Rica v. Nicaragua, Central American Court of
Justice, Opinion and Decision of the Court, 30 September 1916’, American Journal of
International Law 11, 1917, 181 (English translation).
10 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), op. cit., n.
1, Costa Rica’s Application, 29 September 2005.
11 See Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua), Costa Rica’s Application, 18 November 2010; Construction of a Road in
Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Nicaragua’s Application,
22 December 2011; Certain Activities carried out by Nicaragua in the Border Area,
Joinder of Proceedings, Order of 17 April 2013, I.C.J. Reports 2013, p. 166; Construction of
a Road in Costa Rica along the San Juan River, Joinder of Proceedings, Order of 17 April
2013, I.C.J. Reports 2013, p. 184; Certain Activities carried out by Nicaragua in the Border
Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan
River (Nicaragua v. Costa Rica), ICJ, Judgment of 16 December 2015. See further Part
I, Chapter III.
12 See e.g. Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua), op. cit., n. 11, Costa Rica’s Application, p. 2; Construction of a Road in Costa
Rica along the San Juan River, op. cit., n. 11, Nicaragua’s Application, p. 30.
13 See Dispute regarding Navigational and Related Rights, op. cit., n. 1, Verbatim Record, 5
March 2009, CR 2009/4, p. 17, paras 35–6 (Mr Argüello on behalf of Nicaragua);
Verbatim Record, 9 March 2009, CR/2009/6, p. 66, para. 7 (Mr Ugalde on behalf of
Costa Rica).
 Navigational and Related Rights 301

them for their safety and prosperity’.14 This laudable aspiration is yet to be
fully achieved. The waters of the San Juan River may be shallow, but the
dispute between Costa Rica and Nicaragua over the boundary regime in the
Treaty of Limits evidently runs deep.

II Dispute regarding navigational and related rights

With these introductory remarks in mind, the present chapter will now
briefly examine the Navigational and Related Rights case. This section will
in turn consider the facts of the dispute before the Court in Navigational
and Related Rights; the Court’s reasoning in arriving at its judgment in the
case; the Court’s judgment and its contribution to international law; and the
alleged non-compliance with the Court’s judgment.

A. The dispute before the Court

As already observed, on 29 September 2005, Costa Rica brought ICJ
proceedings against Nicaragua with respect to a dispute concerning naviga-
tional and related rights of Costa Rica on the San Juan River. Costa Rica
notably claimed that Nicaragua had breached its obligation under Article VI
of the Treaty of Limits to allow all Costa Rican vessels and their passengers
to navigate freely on the San Juan for purposes of commerce, including
communication and the transportation of passengers and tourism on that
stretch of the San Juan where the border lies on the Costa Rican bank of the
river. Costa Rica further claimed that Nicaragua had breached the Treaty of
Limits by imposing various regulations of navigation (e.g. with respect to
departure clearance certificates, visas and tourist cards and the charging of
multiple associated fees), which infringed its right of free navigation on the
San Juan. Finally, Costa Rica claimed that Nicaragua had violated a bilateral
custom permitting riparians of the Costa Rican bank to fish in the San Juan
for subsistence purposes.15
The key issue before the Court concerned the effect of the passage of time
on the interpretation of Article VI of the 1858 Treaty of Limits – a provision
that it may be recalled granted Nicaragua sovereignty over the San Juan River
in exchange for which Costa Rica received a perpetual right of free naviga-
tion con objetos de comercio on that part of the San Juan, which constitutes
the border between them. The parties’ disagreement was greatest on the
meaning of the Spanish words con objetos de comercio in Article VI of the
Treaty of Limits – the Spanish version of the treaty being the only authori-
tative one. For its part, Costa Rica claimed that the Spanish words con objetos
de comercio in Article VI of the Treaty of Limits should be translated into

14 Treaty of Territorial Limits, op. cit., n. 1 (preamble).

15 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), op. cit.,
n. 1, pp. 221–6, paras 12–14 (for the parties’ submissions).
302 Martin Dawidowicz

English as meaning ‘for purposes of commerce’; as a minimum, its naviga-

tional rights on the San Juan River were therefore not only limited to the
transport of goods but also encompassed passengers, including tourists. For
Nicaragua, the relevant words should be translated into English as meaning
‘with articles of trade’; in other words, Costa Rica’s navigational rights were
limited to the commercial transport of goods.16

B. The Court’s reasoning

The Court’s analysis proceeded in several steps. It first determined the extent
of Costa Rica’s right of free navigation on the San Juan River. It then consid-
ered, within the scope of the Costa Rican right thus defined, to what extent
Nicaragua had the power to regulate navigation by Costa Rican boats and
whether the specific regulations it had enacted in relation thereto were
compatible with Costa Rica’s rights. Finally, it considered whether inhabi-
tants of the Costa Rican bank of the San Juan River had a customary right
to engage in subsistence fishing.17
The Court turned first to the meaning of the Spanish phrase con objetos de
comercio in Article VI of the 1858 Treaty of Limits in order to determine
whether it should mean ‘for the purposes of commerce’ – as Costa Rica
alleged – or ‘with articles of trade’ – as alleged by Nicaragua. Having deter-
mined by way of treaty interpretation that the parties must have understood
the phrase con objetos de comercio to mean ‘for purposes of commerce’,18 the
Court next turned to the meaning of comercio or ‘commerce’ in order to
determine the precise extent of Costa Rica’s right of free navigation. For
Costa Rica, the word ‘commerce’ covered ‘any activity in pursuit of commer-
cial purposes, and includes, inter alia, the transport of passengers, tourists
among them, as well as of goods’.19 Costa Rica further alleged that
‘commerce’ was a broad concept that extended even beyond for-profit activ-
ities to cover ‘communication and dealings of some persons or peoples with
others’.20 It followed on this view that the word ‘commerce’ included ‘move-
ment and contact between inhabitants of the villages on the Costa Rican
bank of the San Juan River, and the use of the river for purposes of naviga-
tion by Costa Rican public officials providing the local population with
essential services, such as health, education and security’.21 For Nicaragua, by
contrast, ‘commerce’ covered ‘solely the purchase and sale of merchandise,
of physical goods, and excludes all services, such as passenger transport’.22 In

16 Ibid., p. 236, para. 45.

17 Ibid., pp. 231–2, para. 29.
18 Ibid., pp. 238–40, paras 50–6.
19 Ibid., p. 241, para. 59.
20 Ibid.
21 Ibid.
22 Ibid., p. 240, para. 58.
 Navigational and Related Rights 303

any event, the word ‘commerce’ should be given the meaning it had when
the Treaty of Limits was entered into in 1858, which ‘necessarily meant trade
in goods and did not extend to services, the inclusion of services being a very
recent development’.23
The Court subscribed neither to the broad interpretation of the meaning
of ‘commerce’ advanced by Costa Rica nor the narrow one put forward by
Nicaragua. After reaffirming the cardinal principle that ‘the terms used in a
treaty must be interpreted in light of what is determined to have been the
parties’ common intention, which is, by definition, contemporaneous with
the treaty’s conclusion’, the Court in relevant part stated:

[T]here are situations in which the parties’ intent upon conclusion of the
treaty was, or may be presumed to have been, to give the terms used –
or some of them – a meaning or content capable of evolving, not one
fixed once and for all, so as to make allowance for, among other things,
developments in international law. In such instances, it is indeed in order
to respect the parties’ common intention at the time the treaty was
concluded, not to depart from it, that account should be taken of the
meaning acquired by the terms in question upon each occasion on which
the treaty is to be applied.24

The Court, relying on its earlier case law, continued:

[W]here the parties have used generic terms in a treaty, the parties neces-
sarily having been aware that the meaning of the terms was likely to
evolve over time, and where the treaty has been entered into for a very
long period or is “of continuing duration”, the parties must be
presumed, as a general rule, to have intended those rules to have an
evolving meaning.25

The Court concluded that this was so in respect of the term comercio as used
in Article VI of the Treaty of Limits. First, comercio was a generic term.
Second, the Treaty of Limits was entered into for an unlimited duration;
from the outset it was intended to create a boundary regime characterized by
its perpetuity. Indeed the Court noted that the object of the Treaty of Limits
was ‘to achieve a permanent settlement between the parties of their territo-
rial disputes’.26 And the perpetual right of free navigation guaranteed to
Costa Rica under Article VI of the Treaty of Limits formed an integral part
of that territorial settlement.27 Thus the Court concluded that the term

23 Ibid.
24 Ibid., p. 242, paras 63–4.
25 Ibid., pp. 242–3, paras 65–6.
26 Ibid., p. 243, para. 68.
27 Ibid., p. 244, para. 69.
304 Martin Dawidowicz

‘comercio’ had to be given an evolutive interpretation.28 The Court on this

basis found that Costa Rica’s right of navigation under Article VI of the
Treaty of Limits applied to the transport of persons as well as the transport
of goods, as the activity of transporting persons (including tourists) could
nowadays be commercial in nature provided it was carried out for profit-
making purposes.29
The Court’s reasoning meant that non-commercial navigation of private
vessels belonging to the inhabitants of the villages of the Costa Rican bank
of the San Juan River in order to meet the basic requirements of everyday
life, such as taking children to school or in order to give or receive medical
treatment, was not protected by Article VI of the Treaty of Limits. The
Court nonetheless held that such a minimal right of navigation – which
applied equally to certain Costa Rican official vessels used solely for the
purpose of providing the local population with assistance in order to meet
the necessities of daily life – could be inferred from the provisions of the
Treaty of Limits as a whole and, in particular, the manner in which the
boundary was fixed along the river bank.30
Having determined the extent of Costa Rica’s navigational rights on the
San Juan River, the Court next considered Nicaragua’s power to regulate
that navigation. The Court concluded that Nicaragua had the power to
regulate navigation under the Treaty of Limits but that power was not
unlimited, being tempered by the rights and obligations of the parties. In
balancing the interests of the parties, the Court explained that a regulation
required certain characteristics based essentially on the principles of reason-
ableness, non-arbitrariness and non-discrimination. The Court applied these
criteria to the impugned regulations and found that Nicaragua had duly
exercised its powers of regulation regarding certain matters but had
breached the Treaty of Limits in implementing measures requiring visas and
tourist cards and the payment of charges in respect of Costa Rican vessels,
boat operators and their passengers exercising the freedom of navigation.31
Finally, the Court found that the inhabitants of the Costa Rican bank of the
San Juan River were entitled to engage in fishing for subsistence purposes
as a customary right.32

28 Ibid., p. 244, para. 70. For criticism see ibid., pp. 283–5 (Sep. Op. Judge Skotnikov), pp.
293–9 (Dec. Judge ad hoc Guillaume).
29 Ibid., p. 244, para. 71.
30 Ibid., pp., 244–8, paras 72–84. For criticism see ibid., pp. 300–1 (Dec. Judge ad hoc
Guillaume).
31 Ibid., pp. 248–63, paras 85–133. For criticism see ibid., pp. 273–7 (Sep. Op. Judge
Sepúlveda-Amor), pp. 286–9 (Sep. Op. Judge Skotnikov), pp. 301–2 (Dec. Judge ad hoc
Guillaume).
32 Ibid., pp. 263–6, paras 134–44. For criticism see ibid., pp. 278–82 (Sep. Op. Judge
Sepúlveda-Amor).
 Navigational and Related Rights 305

C. The Court’s judgment and its contribution to international law

The Court’s main legal contribution in Navigational and Related Rights was
to reaffirm the principle of evolutionary treaty interpretation – a principle
well-established (albeit not well-developed) in its jurisprudence.33 As Judge
ad hoc Guillaume observed in Navigational and Related Rights, the question
of the effect of the passage of time on treaty interpretation has been the
subject of lively debate between proponents of ‘contemporaneous’ interpre-
tation and advocates of ‘evolutionary’ interpretation. Judge ad hoc
Guillaume rightly concluded that evolutionary interpretation does not
appear to be a separate method of interpretation but rather the result of the
proper application of ordinary means of interpretation as codified in Article
31 Vienna Convention on the Law of Treaties.34 Put differently, there
appears to be nothing special about evolutionary treaty interpretation – a
point not always well understood.35
Evolutionary treaty interpretation has become a characteristic feature of
the jurisprudence of the European Court of Human Rights; however, it is
not at all clear that such an interpretation is more suited for some types of
treaty (notably in the field of human rights) than it is for others. The Court’s
reliance on evolutionary treaty interpretation in Navigational and Related
Rights – albeit seemingly unnecessary in the actual circumstances of the case36
– underlines this point. In essence, evolutionary treaty interpretation is but
an application of a basic principle – the intention of the parties – the deter-
mination of which is the main task in the work of interpretation.37 Since the
Court’s 2009 judgment in Navigational and Related Rights, Special
Rapporteur Nolte has explicitly relied on the judgment in support of the

33 For an assessment see further Bjorge, E., ‘International Court of Justice, Case Concerning
the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua)
Judgment of 13 July 2009’, International and Comparative Law Quarterly 60, 2009, pp.
271–9; Lathrop, C. G., ‘Dispute regarding Navigational and Related Rights (Costa Rica v.
Nicaragua)’, American Journal of International Law 104, 2010, pp. 454–61; Dawidowicz,
M., ‘The Effect of the Passage of Time on the Interpretation of Treaties: Some Reflections
on Costa Rica v. Nicaragua’, Leiden Journal of International Law 24, 2011, pp. 201–22.
Generally: Bjorge, E., The Evolutionary Interpretation of Treaties, Oxford: Oxford
University Press, 2014; Djeffal, C., Static and Evolutive Treaty Interpretation: A
Functional Reconstruction, Cambridge: Cambridge University Press, 2016.
34 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), op. cit.,
n. 1, p. 294 (Dec. Judge ad hoc Guillaume).
35 To the same effect see Bjorge E., ‘International Court of Justice, Case Concerning the
Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua)’, op. cit.,
n. 34, p. 279 (with further references).
36 See generally Dawidowicz, ‘The Effect of the Passage of Time on the Interpretation of
Treaties: Some Reflections on Costa Rica v. Nicaragua’, op. cit., n. 33.
37 See e.g. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), op.
cit., n. 1, p. 242, para. 64. Also: Bjorge, The Evolutionary Interpretation of Treaties, op. cit.,
n. 33, p. 2.
306 Martin Dawidowicz

same conclusion in the ILC’s work on subsequent agreements and subse-

quent practice in relation to treaty interpretation.38

D. The alleged non-compliance with the Court’s judgment

In his declaration appended to the Court’s judgment in Navigational and
Related Rights, Judge ad hoc Guillaume ‘express[ed] the hope that it will
enable the two countries to overcome their past difficulties in respect of the
river’.39 In a similar vein, during the oral proceedings, Costa Rica’s Agent
explained: ‘It is our hope that the decision of the Court will finally settle the
dispute so that both Costa Rica and Nicaragua can return to fraternal and
friendly relations on all fronts.’40 This laudable aspiration has evidently not
yet been fulfilled. In Certain Activities carried out by Nicaragua in the
Border Area, Costa Rica has, among other alleged breaches of the Treaty of
Limits and international law,41 claimed that Nicaragua has continued to
impair Costa Rica’s navigational rights under the Treaty of Limits in clear
violation of the Court’s judgment in Navigational and Related Rights.
Indeed Costa Rica in this case specifically asked the Court to adjudge and
declare that Nicaragua had violated its judgment in Navigational and
Related Rights. In its judgment, the Court found that Nicaragua has
breached Costa Rica’s rights of navigation on the San Juan River pursuant to
the Treaty of Limits.42
In Construction of a Road in Costa Rica along the San Juan River, Costa
Rica also invoked Nicaragua’s alleged non-compliance with the Court’s
judgment as a circumstance (among several others) leading to the urgent
construction of a road on its territory along the San Juan River.43 Nicaragua
brought ICJ proceedings against Costa Rica in this case, inter alia, on the
basis that Costa Rica’s construction of the said road allegedly prejudiced
Nicaraguan territory contrary to the Treaty of Limits. As part of its request
for relief, Nicaragua initially asked the Court for a declaration allowing it by

38 See Nolte, G., ‘First report on subsequent agreements and subsequent practice in relation
to treaty interpretation’, UN Doc. A/CN.4/660, pp. 23–7; and also ILC Report (2013),
UN Doc. A/68/10, p. 12 (Draft Conclusion 3 – ‘Interpretation of treaty terms as capa-
ble of evolving over time’).
39 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), op. cit.,
n. 1, p. 302 (Dec. Judge ad hoc Guillaume).
40 Ibid., Verbatim Record, 2 March 2009, CR 2009/2, p. 14, para. 10 (Mr Ugalde on behalf
of Costa Rica).
41 See Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua), op. cit., n. 11, Costa Rica’s Application, p. 2.
42 Ibid., Costa Rica’s Memorial, pp. 290–4, 303; Verbatim Record, 15 April 2015, CR
2015/4, pp. 10–22, paras 1–40 (Ms Del Mar on behalf of Costa Rica); Certain Activities
carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), op. cit., n. 11, para.
229(4).
43 See Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa
Rica), op. cit., n. 11, Costa Rica’s Counter-Memorial, pp. 22–5.
 Navigational and Related Rights 307

way of countermeasures to suspend Costa Rica’s right of navigation on the

San Juan River under the Treaty of Limits.44 The request was, however,
subsequently withdrawn as being unnecessary since Nicaragua would not
require the Court’s permission to take such action. In any event, Nicaragua
explained that such a countermeasure was ‘not envisaged at the present
time’.45
Costa Rica had earlier in the proceedings stated that the Nicaraguan claim
that prejudice to its territory could affect the navigational rights granted to
it under the Treaty of Limits appeared to be ‘an ill-disguised and impermis-
sible attempt to re-litigate the Court’s 2009 judgment in Navigational
Rights’.46 Costa Rica immediately added: ‘It is in reality another in a series of
attempts by Nicaragua to eliminate Costa Rica’s navigational rights on the
San Juan River.’47 The matter may ultimately have become moot in
Construction of a Road in Costa Rica along the San Juan River, but the fact
that Nicaragua appears to have reserved its right to suspend Costa Rica’s
navigational rights under the Treaty of Limits by way of countermeasures
reinforces the regrettable notion that the Court’s judgment in Navigational
and Related Rights has so far not enabled the two countries to overcome
their past difficulties in respect of the San Juan River.

III Conclusion
The 1858 Treaty of Limits appears to be one of the most litigated bilateral
treaties in the history of the Court. This is somewhat surprising given that
the object of the Treaty of Limits was to achieve a permanent settlement
between the parties of their territorial disputes. Treaties involving territorial
settlements are by nature characterized by permanence and the objective of
achieving finality and stability. The Court in its 2009 judgment in
Navigational and Related Rights upheld many of Costa Rica’s submissions
on the scope and extent of its navigational and related rights on the San Juan
River – chiefly by reaffirming the principle of evolutionary treaty interpreta-
tion – while also recognising Nicaragua’s broad power of regulation of
navigation. But disputes between the parties remain.
The Navigational and Related Rights case has triggered additional litiga-
tion before the Court. This litigation has at least in part involved alleged
additional breaches of the Treaty of Limits and alleged non-compliance with
the Court’s judgment in Navigational and Related Rights. In Certain
Activities carried out by Nicaragua in the Border Area, the Court found that
Nicaragua has breached Costa Rica’s navigational rights under the Treaty of

44 Ibid., Nicaragua’s Memorial, pp. 244–9, 252.

45 Ibid., Verbatim Record, 30 April 2015, CR 2015/16, p. 57, para. 17 (Mr Pellet on behalf
of Nicaragua).
46 Ibid., Costa Rica’s Counter-Memorial, p. 136.
47 Ibid.
308 Martin Dawidowicz

Limits, as affirmed by its judgment in Navigational and Related Rights. And

it appears that still further disputes in relation to the Treaty of Limits may
arise. The preamble to the Treaty of Limits between Costa Rica and
Nicaragua explains that it was designed to ‘put an end to all the differences
which have obstructed the perfect understanding and harmony that must
prevail among them for their safety and prosperity’.48 The aftermath to the
Court’s judgment in Navigational and Related Rights suggests that this
aspiration is yet to be fully achieved.

Bibliography
Bjorge, E., ‘International Court of Justice, Case Concerning the Dispute regarding
Navigational and Related Rights (Costa Rica v. Nicaragua) Judgment of 13 July
2009’, International and Comparative Law Quarterly 60, 2009, 271–9.
Bjorge, E., The Evolutionary Interpretation of Treaties, Oxford: Oxford University
Press, 2014.
Dawidowicz, M., ‘The Effect of the Passage of Time on the Interpretation of
Treaties: Some Reflections on Costa Rica v. Nicaragua’, Leiden Journal of
International Law 24, 2011, 201–22.
Djeffal, C., Static and Evolutive Treaty Interpretation: A Functional Reconstruction,
Cambridge: Cambridge University Press, 2016.
Lathrop, C. G., ‘Dispute regarding Navigational and Related Rights (Costa Rica v.
Nicaragua)’, American Journal of International Law 104, 2010, 454–61.
Nolte, G., ‘First report on subsequent agreements and subsequent practice in relation
to treaty interpretation’, UN Doc. A/CN.4/660, 23–7.

48 Treaty of Territorial Limits, op. cit., n. 1 (preamble).

26 Pulp Mills on the River Uruguay
(Argentina v. Uruguay), 2006
Sandrine Maljean-Dubois and Vanessa Richard

On 20 April 2010, the International Court of Justice (hereinafter ‘ICJ’ or

‘the Court’) pronounced its ruling regarding the dispute opposing Argentina
and Uruguay in the Pulp Mills on the River Uruguay case.1 The dispute orig-
inates from the construction of two pulp mills on the left bank of the
Uruguay River, near the Uruguayan city of Fray Bentos and opposite the
Argentinian region of Gualeguaychú. The construction works of the first
mill, called CMB (ENCE),2 started in November 2005. However, the
Spanish sponsors of the project announced they were definitively abandon-
ing it in September 2006. The second pulp mill, Orion (Botnia),3 was
constructed a few kilometres downstream of the site planned for CMB
(ENCE). The project was launched in 2003 and the Orion (Botnia) mill has
been in operation since 9 November 2007.
As emphasized by the ICJ in 2006,4 this is the biggest foreign investment
that Uruguay has ever hosted; thus the stakes were quite high for Uruguay.
From the very beginning, on the other bank of the river, the project has
stirred up vehement protests from the Argentine authorities as well as from
the population who feared pollution damage in a region where the main
economic activities are tourism, fishing and agriculture. Since December
2005, the bridges between the two countries have occasionally been blocked
by gatherings of Argentine citizens.
In this tense context, several judicial and non-judicial procedures at the
domestic, regional and international levels have been triggered, including
procedures based on the social and environmental responsibility of

1 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010,
p. 14.
2 CMB stands for Celulosas de M’Bopicuá S.A., and ENCE for Empresa Nacional de Celulosas
de España.
3 The Orion mill is undertaken by Botnia S.A. and Botnia Fray Bentos S.A., two Uruguayan
companies created in 2003 by the Finnish company Oy Metsä-Botnia AB.
4 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Request for the Indication of
Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, para. 48.
310 Maljean-Dubois and Richard

enterprises.5 The two states agreed in 2005 on the creation of a High-Level

Technical Group, the GTAN,6 which aimed to find a negotiated solution.
The King of Spain also offered mediation. None of these initiatives resulted
in reaching a settlement. On 4 May 2006, Argentina brought the dispute
before the ICJ, grounding the referral on Article 60, paragraph 1 of a bilat-
eral treaty in force between the two countries: the Statute of the River
Uruguay signed on 26 February 1975 (the Statute).7 Its object and purpose
are to promote the ‘optimum and rational utilization of the River Uruguay’
(Article 1). It frames the river’s uses and provides for obligations of consul-
tation, information and cooperation between the parties, as well as the
prevention of environmental harm.
In the following months, the Court examined two requests for the indi-
cation of provisional measures. First, on 13 July 2006, it dismissed an
Argentine request submitted at the same time as the main complaint, which
demanded the suspension of the construction of Orion (Botnia).8 Second, on
23 January 2007, the ICJ dismissed another request submitted by Uruguay,
the aim of which was to obtain an emergency removal of the blockades that
Argentine opponents to the project had organized on the bridges and roads
connecting the two countries.9 A few months before this request, Uruguay
had already referred this matter to the Mercosur arbitral tribunal. In an
award of 6 September 2006, the latter had refused to command Argentina
to remove the blockades but had stated that Argentina had failed to comply
with its due diligence obligations.10
Regarding the substance of the case, Argentina alleged before the ICJ that
Uruguay had breached the Statute by unilaterally authorizing the construc-
tion of two pulp mills and by allowing the commissioning of Orion (Botnia).
According to Argentina, such facilities would cause significant harm to the
environment of the Uruguay River and its area of influence. It added that
‘the process envisaged by the CMB and Orion projects … is inherently
polluting’ and that ‘90 per cent of fish production in the Argentina-Uruguay
section of the river … is located within the areas affected by the mills, which
are also a breeding area for the river’s migratory fish stocks,’ not to mention

5 M.-P. Lanfranchi, ‘L’affaire des usines de pâte à papier, un état des lieux’, L’Observateur
des Nations Unies 24, 2010, p. 38.
6 For Grupo Técnico de Alto Nivel.
7 UNTS, vol. 1295, no. I-21425, p. 340.
8 Order of 13 July 2006, op. cit.
9 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Request for the Indication of
Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007.
10 Laudo del Tribunal arbitral ‘ad hoc’ de MERCOSUR sobre ‘Omisión del Estado Argentino
en Adoptar Medidas Apropiadas para Prevenir y/o Hacer Cesar los Impedimentos a la Libre
Circulación Derivados de los Cortes en Territorio Argentino de vías de Acceso a los Puentes
Internacionales General San Martín y General Artigas’. Online. Available HTTP:
www.mercosur.int/msweb/portal%20intermediario/es/controversias/laudo.html
(accessed 18 February 2016).
 Pulp Mills on the River Uruguay 311

the fact that the pulp mills would be very near to the surrounding towns.11
Argentina requested the ICJ to find that these were ‘internationally wrong-
ful acts by which Uruguay engaged its responsibility,’ to impose that
Uruguay ‘re-establish on the ground and in legal terms the situation that
existed before these internationally wrongful acts were committed’ and, to
declare that Uruguay had to ‘pay compensation to the Argentine Republic
for the damage caused.’12 Uruguay requested the ICJ to determine that the
construction was lawful and declare ‘Uruguay’s right to continue operating
the Botnia plant in conformity with the provisions of the 1975 Statute.’13
The judgment on the merits of the case was eagerly awaited by both
parties, whose relationship had been badly damaged by the dispute.
However, the case raised expectations beyond the parties as it is emblematic
of sustainable development issues that balance economic development
against the protection of natural resources. From the stage of provisional
measures, the Court said it was aware of the stakes: ‘account must be taken
of the need to safeguard the continued conservation of the river environment
and the rights of economic development of the riparian States.’14 In its 2010
judgment, the Court nevertheless reaches only an unstable balance between
these considerations. On the one hand, it considers that Uruguay did not
comply with its procedural obligations under Articles 7 to 12 of the Statute.
On the other, it dismisses all allegations concerning the breach of substan-
tive prevention obligations, and it states that the declaration by the Court on
the breach of procedural obligations constitutes appropriate satisfaction.
Such a result reflects the difficulties the Court faced in solving a dispute on
the basis of pieces of evidence that were highly technical. The conclusions it
reached in this regard are quite traditional, not to say excessively cautious as
regards the determination of both the burden and content of proof.15 The
Court adopted a rather restrictive interpretation of the obligations to prevent
environmental harm. Grounding its reasoning on a strict distinction between
procedural and substantive obligations, the Court comes to specify the scope
of the obligation to prevent transboundary harm.

I A watertight distinction between procedural and

substantive obligations
The judgment rests on a summa divisio between procedural and substantive
obligations. Such a distinction does not stand up to analysis: first because the
frontier between the two categories of obligation is ill-defined; second
because the results they lead to are hardly satisfactory. According to the

11 Order of 13 July 2006, op. cit., para. 8.

12 Judgment of 20 April 2010, op. cit., para. 24.
13 Ibid., para. 23.
14 Order of 13 July 2006, op. cit., para. 80.
15 On these issues see Kerbrat and Maljean-Dubois, op. cit., 39–75.
312 Maljean-Dubois and Richard

Court, the process of authorizing, constructing and commissioning the pulp

mill must be analyzed under the angle of the procedural obligations of infor-
mation, notification and cooperation provided for by Articles 7 to 12 of the
Statute. After the mill’s commissioning, the question is rather to determine
whether Uruguay has complied with its substantive obligations to prevent
harm.16 Such a chronological distinction proves to be artificial, since proce-
dural and substantive obligations are not called for to operate successively.
Some of the obligations considered as substantive by the Court should be
applied before the commissioning of the pulp mill, for example, the obliga-
tion to conduct an environmental impact assessment (EIA). The EIA is an
obligatory stage of the procedure and is generally described as a procedural
obligation. It is thus unsurprising that the Court has trouble in deciding
which category it belongs to and therefore treats it under both angles.
Procedural and substantive obligations are inextricably intertwined:
compliance with obligations to prevent environmental harm – which the
Court views as substantive – is inseparable from compliance with procedural
requirements. As compliance with procedural obligations is the only way to
prevent environmental harm, procedural obligations are as important as
substantive obligations. Being non-operational, this distinction entails ques-
tionable consequences.17 In the Court’s opinion, non-compliance with
procedural obligations is independent from compliance or non-compliance
with substantive obligations.18 The Court however recognizes that there is a
‘functional link’ between the two categories of obligations because of their
common purpose: the prevention of environmental harm,19 but it considers
that this link ‘does not prevent the States parties from being required to
answer for those obligations separately, according to their specific content,
and to assume, if necessary, the responsibility resulting from the breach of
them, according to the circumstances.’20 The Court considers that as
Uruguay’s breaches of procedural obligations occurred in the past and have
come to an end, there is no cause to order their cessation.21 It leads the Court
to deny any material compensation to Argentina. Since ‘the procedural obli-
gations under the 1975 Statute did not entail any ensuing prohibition on
Uruguay’s building of the Orion (Botnia) mill, failing consent by Argentina,
after the expiration of the period for negotiation’ and since ‘the operation of
the Orion (Botnia) mill has not resulted in the breach of substantive obliga-
tions laid down in the 1975 Statute,’ ‘ordering the dismantling of the mill
would not, in the view of the Court, constitute an appropriate remedy for
the breach of procedural obligations.’22 Having ruled out the restitutio in

16 Judgment, op. cit., para. 46.

17 Joint dissenting opinion of Judges Al-Khasawneh and Simma, op. cit., para. 26.
18 Judgment, op. cit., para. 68.
19 Ibid., para. 79.
20 Ibid.
21 Ibid., para. 269.
22 Ibid., para. 275.
 Pulp Mills on the River Uruguay 313

integrum, the Court refuses ‘for the same reasons’ the Argentine claim for
monetary compensation for alleged injuries suffered in various economic
sectors, specifically tourism and agriculture.23 In short, the Court does not
draw any consequence from the fact that procedural obligations have been
breached.24 And yet, by breaching its procedural obligations, hasn’t Uruguay
also breached some substantive obligations? Conversely, could compliance
with its procedural obligations have led Uruguay to revise its decision to
construct the pulp mill, or to reconsider its location or possibly the technol-
ogy used at the mill?
In the end, it appears the Court had in advance determined the result it
desired to obtain – to not question the huge investment that constitutes the
construction of the pulp mill in Uruguay – and then determined the course
of reasoning that led to the desired result. It also spares the Court of finding
itself in a delicate position. In July 2006, it had decided that a provisional
suspension of the construction works was not necessary.25 Recalling its
Passage through the Great Belt decision to refuse to order provisional meas-
ures, the Court had then merely mentioned that its decision on the merits
could in fine result in Uruguay having to decommission the facilities.26

II The scope of obligations to prevent harm in a

transboundary context
The Court upholds a narrow conception of its role that leads it to rule that
Uruguay was not prevented to construct the pulp mills awaiting a decision
on the merits. It then asserts or re-asserts some fundamental principles
related to cooperation and prevention of harm in a transboundary context.
Finally, it does not find that Uruguay has breached substantive obligations.

A. The scope of Article 12 of the Statute: Right to have a say or right

of veto?
Articles 7 to 12 of the Statute define the different stages of a detailed proce-
dure. If one of the parties ‘plans to construct new channels, substantially
modify or alter existing ones or carry out any other works which are liable to
affect navigation, the régime of the river or the quality of its waters,’27 it has
to inform the joint river commission, the CARU. The CARU determines
prima facie whether the plan might cause significant damage to the other
party. Should the Commission find this to be the case or a decision cannot
be reached, the party concerned shall notify the other of the plan through

23 Ibid., para. 276.

24 Dissenting opinion of Judge ad hoc Vinuesa, para. 6.
25 Order of 13 July 2006, op. cit.
26 Ibid., paras. 70–1.
27 Article 7.
314 Maljean-Dubois and Richard

the CARU. The notified party can object, request further information or
suggest changes. If parties cannot reach an agreement within 180 days,
Article 12 provides that the dispute settlement clause of Article 60 – which
enables ‘either Party to submit to the Court any dispute concerning the
interpretation or application of the Statute which cannot be settled by direct
negotiations’ – shall apply. The purpose of this procedure is to support coop-
eration between parties, each one having a ‘right to have a say’ on the
projects the other party might have. Can this ‘right to have a say’ that Article
12 bestows amount to a right of veto? Nothing points in this direction.
Article 12 however enables the parties to ask the judge to settle a potential
dispute in this respect. This opportunity could have radically changed the
role of the Court.28 It could indeed have resulted in Uruguay being forbid-
den to authorize the pulp mills’ construction until the Court reached a
decision. Such an interpretation would have been in line with the spirit of the
procedure established by Articles 7 to 12. The Court did not follow this line
of reasoning and its position is criticized with reason by several judges.29

B. Cooperation and prevention: Customary and treaty-based

obligations
Since the Court is referred to on the basis of the dispute settlement clause of
the Statute and the Statute’s provisions are rather detailed, the ICJ refers
little to customary law. Therefore, observers can hardly draw lessons beyond
the case-specific. The Court nevertheless reasserts or asserts on several occa-
sions the customary nature of certain obligations and in the end clarifies their
content and scope along the lines of its previous case law.

1. The importance of procedural obligations in the management of shared

natural resources
The Court rightly points out that ‘These [procedural] obligations are all the
more vital when a shared resource is at issue … which can only be protected
through close and continuous co-operation between the riparian States.’30
The cooperation obligation is inferred from the Statute: it is a treaty-based
obligation. The Court states that the CARU is the masterpiece of the
scheme.31 In line with its order on provisional measures,32 it underlines the
critical role that joint river commissions play in the sharing of information
and, more broadly, in cooperation. According to the Court, the CARU is an
international organization: ‘far from being merely a transmission mechanism

28 Joint dissenting opinion of Judges Al-Khasawneh and Simma, op. cit., para. 25.
29 Judgment, op. cit., para. 154; Declaration of Judge Skotnikov, para. 3.
30 Ibid., para. 81.
31 Judgment, op. cit., para. 93.
32 Order of 13 July 2006, op. cit., para. 81.
 Pulp Mills on the River Uruguay 315

between the parties, CARU has a permanent existence of its own.’33 Such an
approach perpetuates the negotiation framework since ‘neither of [the
parties] may depart from that framework unilaterally.’34

2. The customary nature of the obligation to prevent transboundary

environmental harm
The Court reminds that:

[t]he principle of prevention, as a customary rule, has its origins in the

due diligence that is required of a State in its territory. It is ‘every State’s
obligation not to allow knowingly its territory to be used for acts
contrary to the rights of other States’ (Corfu Channel (United Kingdom
v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 22.) A State is thus
obliged to use all the means at its disposal in order to avoid activities
which take place in its territory, or in any area under its jurisdiction, caus-
ing significant damage to the environment of another State. This Court
has established that this obligation ‘is now part of the corpus of interna-
tional law relating to the environment.’35

The Court here refers to the expression (‘is now part of ’) employed in its
1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons36 and repeated in its 1997 Gabčíkovo-Nagymaros judgment.37 The
phrase is inspired by Principle 21 of the 1972 Stockholm Declaration.38 Its
scope had however remained vague in 1996 and 1997, probably voluntarily.
It is henceforth clearly established as a customary obligation. On the merits,
this obligation is also clear. From then on, ‘A State is thus obliged to use all
the means at its disposal in order to avoid activities which take place in its
territory, or in any area under its jurisdiction, causing significant damage to
the environment of another State.’39 It commands to apply ‘diligence’ and
‘use all the means at [the state’s] disposal.’ However, whereas states had to
respect the environment of other states in 1997, in 2010 they must not cause

33 Judgment, op. cit., para. 87.

34 Ibid., para. 90. See also the critic of Judge Torres Bernardez, Pulp Mills on the River
Uruguay (Argentina v. Uruguay), Separate opinion of Judge ad hoc Torres Bernárdez, para.
11.
35 Ibid., para. 101.
36 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, I.C.J.
Reports 1996, para. 29.
37 Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 25 September 1997, I.C.J.
Reports 1997, para. 53.
38 Declaration of the United Nations Conference on the Human Environment, 16 June 1972.
See also Principle 2 of the Rio Declaration on Environment and Development, 13 June
1992, A/CONF.151/26.
39 Judgment, op. cit., para. 101.
316 Maljean-Dubois and Richard

any ‘significant damage’. First, the positive obligation to respect the envi-
ronment becomes an obligation to refrain from causing harm. Second, the
Court creates a threshold where none existed. This notion of ‘significant
damage’ remains to be clarified. In any case, by referring to the Corfu
Channel case and to the notion of due diligence, the Court is probably
attempting to better define the consequences of this principle in the proce-
dural field, including beyond the case-specific.
The Court then analyzes Uruguay’s compliance with its substantive
prevention obligations. It states that ‘the attainment of optimum and
rational utilization requires a balance between the Parties’ rights and needs
to use the river for economic and commercial activities on the one hand, and
the obligation to protect it from any damage to the environment that may
be caused by such activities, on the other,’40 and mentions the ‘interconnect-
edness between equitable and reasonable utilization of a shared resource and
the balance between economic development and environmental protection
that is the essence of sustainable development.’41 A twofold balance must be
reached: on the one hand, between the rights and needs of the parties and;
on the other hand, between the different uses of the river and the protection
of the environment.
From this prevention obligation, the Court infers positive obligations
incumbent upon the parties.42 As in the Gabčíkovo-Nagymaros case, the Court
reminds that ‘in the field of environmental protection, vigilance and preven-
tion are required on account of the often irreversible character of damage to
the environment and of the limitations inherent in the very mechanism of
reparation of this type of damage.’43 It also endeavours to give full effect to
the scientific ‘ecological balance’ concept and specifies that ‘the negative
impact of human activities on the waters of the river may affect other compo-
nents of the ecosystem of the watercourse such as its flora, fauna, and soil.’44
Likewise, regarding the obligation to prevent pollution and to preserve the
aquatic environment (Article 41), the Court interprets the Statute as subject-
ing the parties to a positive obligation – once again an obligation of means –
which is rather cumbersome.45 Since then, the Seabed Disputes Chamber of
the International Tribunal for the Law of the Sea (ITLOS) has built on these
contributions of the ICJ and has deepened them.46

40 Judgment, op. cit., para. 75. See also para. 174.

41 Ibid., para. 177.
42 Ibid., para. 185.
43 Ibid. Gabcíkovo-Nagymaros Project, op. cit., para. 140.
44 Judgment, op. cit., para. 188.
45 Ibid., para. 223.
46 See ITLOS, Responsibilities and obligations of States sponsoring persons and entities with
respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed
Disputes Chamber), Advisory Opinion in Case no. 17, 1 February 2011; see also ITLOS,
Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC),
Advisory Opinion in Case no. 21, 2 April 2015.
 Pulp Mills on the River Uruguay 317

3. The recognition of the customary nature of the EIAs obligation

The Court recognizes the customary nature of the obligation ‘to undertake
an environmental impact assessment where there is a risk that the proposed
industrial activity may have a significant adverse impact in a transboundary
context, in particular, on a shared resource.’47 In line with the parties’ agree-
ment on the existence of an EIA obligation – and consistently with the
Statute read as a whole – the Court interprets the Statute in an evolutive
manner by referring again to general international law.48 The Court quotes
its judgment in the Dispute Regarding Navigational and Related Rights case
and considers that the parties’ will was to give some of the Statute’s provi-
sions ‘a meaning or content capable of evolving, not one fixed once and for
all, so as to make allowance for, among other things, developments in inter-
national law.’49 The ICJ infers such EIA obligations from a ‘practice, which
in recent years has gained so much acceptance among States’ but also from
‘due diligence, and the duty of vigilance and prevention which it implies,’50
although it does not specify whether it is a customary obligation or an obli-
gation stemming from Article 41 of the Statute. In any case, it is this
connection with due diligence that makes the Court affirm that ‘if a party
planning works liable to affect the regime of the river or the quality of its
waters did not undertake an environmental impact assessment on the poten-
tial effects of such works’ it will not have exercised due diligence. The Court
adds that once the project is commissioned, a continuous monitoring of the
project’s impacts must be implemented throughout the whole life-cycle of
it.51

C. Uruguay’s compliance and non-compliance

Regarding the procedural obligations of information and notification, the
Court is severe vis-à-vis Uruguay: it finds that Uruguay did not comply with
the whole of the cooperation mechanism provided for by Article 7 to 12.52
By requiring that the EIA be passed on together with the notification, the
Court’s interpretation goes even further than the 1991 Espoo Convention,53
which does not include the EIA in the documents that must be passed on.54
It is all the easier for the Court to sentence Uruguay for non-compliance

47 Judgment, op. cit., para. 204.

48 Ibid.
49 Ibid.; Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua),
Judgment, 13 July 2009, I.C.J. Reports 2009, para. 64.
50 Judgment, op. cit., para. 204.
51 Ibid., para. 205.
52 Ibid., para. 149.
53 Convention on Environmental Impact Assessment in a Transboundary Context, Espoo,
Finland, 25 February 1991, UNTS, vol. 1989, p. 309.
54 Article 3 of the Espoo Convention.
318 Maljean-Dubois and Richard

with its procedural obligations then it does not entail any consequence in
terms of compensation.
Equitable and reasonable use of a shared natural resource, balance
between the rights and needs of the parties, need to combine economic
development with environmental protection, ‘real community of interests
and rights,’55 positive obligations of states, customary obligation to conduct
an EIA… The Court has taken a number of steps forward. The Court
however finds that Uruguay did not breach its obligations on the merits. It
progressively rejects all Argentina’s allegations. The Court’s dismissals are
sometimes based on a restrictive interpretation of substantive obligations,
and sometimes on a lack of sufficient evidence. Such a restrictive approach
applies for example to EIAs. The Court only goes part of the way when it
recognizes the obligation to conduct an EIA as customary. Indeed, it consid-
ers that neither the Statute nor general international law specify ‘the scope
and content of an [EIA].’ Consequently, ‘it is for each State to determine in
its domestic legislation or in the authorization process for the project, the
specific content … required in each case, having regard to the nature and
magnitude of the proposed development and its likely adverse impact on the
environment as well as to the need to exercise due diligence in conducting
such an assessment.’56

III Conclusion
At the end of its judgment, the Court emphasizes that the Statute ‘places the
Parties under a duty to co-operate with each other’ and that it ‘encompasses
ongoing monitoring of … the Orion (Botnia) mill.’57 One could indeed fear
that the parties would not be able to agree and that the situation that
followed the Gabčíkovo-Nagymaros judgment would repeat itself: a few
months after the judgment, Slovakia had requested a complementary judg-
ment on the grounds that it hadn’t managed to reach an agreement with
Hungary on the means to execute it. The case is still pending and has trou-
ble in reaching a solution.
Regarding the Pulp mills case, the parties demonstrated a will to turn the
page during the first months. The two heads of state reached an agreement
in July 2010 on the establishment of a joint committee composed of two
Argentine scientists and two Uruguayan scientists, entrusted with assessing
the environmental impact of Orion.58 Soon however, after the scientists
began their mission in early October 2010,59 the release of an alarming report

55 Judgment, op. cit., para. 281.

56 Ibid., para. 205.
57 Ibid., para. 281. See also Separate opinion of Judge Greenwood, op. cit.
58 Notice of Agence France Presse, 28 July 2010.
59 ‘Cientificos argentinos y uruguayos realizan el primer control en la pastera,’ La Nación, 6
October 2010.
 Pulp Mills on the River Uruguay 319

on the air pollution allegedly emitted by the pulp mill – written under the
auspices of the Argentine Ministry of the Environment – sparked off a new
crisis. This issue seems to be outside of the scope of the monitoring the
parties agreed on. Likewise, it was considered to be outside of the remit of
the ICJ.60 In 2013, tensions reached a new level due to a unilateral
Uruguayan decision to considerably increase the pulp mill’s production.
Argentina threatened to refer the matter to the Court again.61 Uruguay
denied planning the construction of another pulp mill. Tension has
temporarily decreased but the battle might not be over.

Bibliography
Journal articles
‘Cientificos argentinos y uruguayos realizan el primer control en la pastera,’ La
Nación, 6 October 2010.
‘Cruce con Uruguay por un informe sobre contaminación,’ Clarín, 14 October
2010.
‘Uruguay’s first lady praises Cristina Fernandez and blast opposition,’ 29 August
2013. Online. Available http://en.mercopress.com/2013/08/29/uruguay-s-
first-lady-praises-cristina-fernandez-and-blast-opposition (accessed 29 May 2015).
‘Argentina threatens legal action over UPM pulp mill’, AFP, 3 October 2013.
Y. Kerbrat, S. Maljean-Dubois, ‘La Cour internationale de Justice face aux enjeux de
protection de l’environnement: réflexions critiques sur l’arrêt du 20 avril 2010,
Usines de pâte à papier sur le fleuve Uruguay (Argentine c. Uruguay),’ Revue
Générale de Droit International Public 1, vol. CXV, 2001, 39–75.
M.-P. Lanfranchi,’L’affaire des usines de pâte à papier, un état des lieux,’
L’Observateur des Nations Unies 24, 2010, 37–63.
V. Richard, E. Truilhé-Marengo, ‘La coopération sur un fleuve partagé, l’anticipation
des risques environnementaux et la CIJ: un pas en avant, deux pas en arrière?,’
Bulletin du Droit de l’Environnement Industriel 28, 2010, 17–21.

Jurisprudence
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, I.C.J.
Reports 1996, p. 226.
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 25 September 1997,
I.C.J. Reports 1997, p. 7.
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Request for the Indication
of Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 113.

60 ‘Cruce con Uruguay por un informe sobre contaminación,’ Clarín, 14 October 2010.
61 ‘Argentina threatens legal action over UPM pulp mill,’ AFP, 3 October 2013. See also
‘Uruguay’s first lady praises Cristina Fernandez and blast opposition,’ 29 August 2013.
Online. Available http://en.mercopress.com/2013/08/29/uruguay-s-first-lady-praises-
cristina-fernandez-and-blast-opposition (accessed 29 May 2015).
320 Maljean-Dubois and Richard

Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua),

Judgment, 13 July 2009, I.C.J. Reports 2009, p. 213.
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports
2010, p. 14.
Responsibilities and obligations of States with respect to activities in the Area, Advisory
Opinion, 1 February 2011, ITLOS Reports 2011, p. 10.
Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission
(SRFC), Advisory Opinion in Case no. 21, 2 April 2015, ITLOS Reports (not
published). Available at: https://www.itlos.org/fileadmin/itlos/documents/
cases/case_no.21/advisory_opinion/C21_AdvOp_02.04.pdf (accessed 24 July
2016).

Treaties and other International Instruments

Declaration of the United Nations Conference on the Human Environment, 16 June
1972, A/CONF48/14/Rev/1.
Resolution 3129 (XXVIII) of the United Nations General Assembly, ‘Cooperation in
the field of the environment concerning natural resources shared by two or more
States,’ 13 December 1973.
Convention on Environmental Impact Assessment in a Transboundary Context,
Espoo, Finland, 25 February 1991, UNTS, vol. 1989, p. 309.
Rio Declaration on Environment and Development, 13 June 1992,
A/CONF.151/26.
Index

Academy see Hague Academy of background 183; decision 186;

International Law decision on application 124, 126;
access to justice 30, 32, 34 provisional measures of protection
access to ocean 281 127; United States reaction 188;
ad hoc chamber, use of 273 use of interpretation proceedings
adjudication see dispute settlement 129
American Treaty on Pacific Settlement
see Pact of Bogotá Bogotá see Pact of Bogotá
Andean Community 11 boundary delineation: access to ocean
Arbitral Award made by the King of 281; angle-bisector method 250;
Spain: about 262; conclusions as to consent to 232; continental shelf see
271; Gámez-Bonilla Treaty 263, Territorial and Maritime Dispute;
264; incapability of execution of delimitation methods 257;
award 270; King of Spain as delimitation procedure and 232;
arbitrator 264; litigation 263; equality of interests 119; exclusive
nullification of award 268; uti economic zone 239, 245;
possidetis 269 information used for 233; islands
arbitration: award see Arbitral Award 253, 277; land boundary 275;
made by the King of Spain; Hague leading cases see Arbitral Award
Peace Conference 1907 30, 39; made by the King of Spain; Dispute
Mercosur 310; Permanent regarding Navigational and Related
Arbitration Tribunal 46 Rights; Land, Island and Maritime
arbitrator, consent to appointment of Frontier dispute; Maritime Dispute;
264 Territorial and Maritime Dispute;
Argentina see Pulp Mills on the River maritime spaces 279; revision of
Uruguay judgment 88; rivers 288; Santiago
armed attack 213 Declaration 239; ‘tacit agreement’
asylum: Convention 180; and 243; territorial sea 250, 255, 257;
international justice 179; law and uti possidetis see uti possidetis
practice 174; leading cases see Breard case see Vienna Convention on
Asylum case; Haya de la Torre case; Consular Relations case
and non-intervention 173
Asylum case: application for Caribbean Sea see Territorial and
interpretation proceedings 122; Maritime Dispute in the Caribbean
background 121, 170; customary Sea
international law 172; decision on Central American Court of Justice
application 123; importance 178 (CACJ): applicable law 41; cases 43;
Avena case: about 183; application for composition 41; creation 39;
interpretation proceedings 124; jurisdiction 41; significance 46
322 Index

Central American Integration System Court of Justice (CACJ)

47, 252 Cuba see Haya de la Torre case
Certain activities carried out by customary international law, leading
Nicaragua in the border area: about cases see Asylum case; Nicaragua
see Certain activities carried out by case; Pulp Mills on the River Uruguay
Nicaragua in the border area;
boundary delimitation 288; delineation and delimitation of
environmental impacts 291; evidence boundaries see boundary delineation
issues 293; provisional measures 294 diplomatic asylum see asylum
Chile see Maritime Dispute direct access to justice see access to
Colombia see Asylum case; Haya de la justice
Torre case; Territorial and Maritime discretional intervention: about 98;
Dispute conclusions as to 107; equality of
Common Market of South America see interests 119; forms of 101;
Mercosur interpretation of legal interest 104;
compulsory jurisdiction see jurisdiction leading cases 101; object of ‘non-
consent: arbitrator appointment 264; party’ intervention 101; ‘party’ or
boundary delineation 232; cases not ‘non-party’? 106; rules governing 99
covered by treaty, submission 20; Dispute regarding Navigational and
international military intervention Related Rights: about 298; alleged
219; jurisdiction 54, 161, 168; non-compliance with judgment 306;
nationality, imposition of 202; not background 301; Court’s reasoning
given 312; and obligation to 302; importance of case 307;
negotiate 78; presumed 267; revision judgment 305; Treaty of Territorial
of judgment 94; tacit 278; third Limits (1858) 298
party intervention 100, 107, 110; dispute settlement: ad hoc chamber, use
withdrawal 121 of 273; OAS 64; Pact of Bogotá 63;
constitutions: compliance with peaceful settlement see peaceful
international court judgments 190, settlement of disputes
280; national 25; PCIJ 22; United
States as model 8; World Court Ecuador see Maritime Dispute
proposal 1907 33 El Salvador see Land, Island and
Construction of a Road in Costa Rica Maritime Frontier dispute;
along the San Juan River: about 287; Nicaragua case; Territorial and
boundary delimitation 288; Maritime Dispute
environmental impacts 291; evidence enforcement of judgments: about 131;
issues 293; provisional measures 294 asylum 162; conclusions as to 140;
consular relations, leading cases see leading case see Nicaragua case;
Avena case; Vienna Convention on United Nations Charter 137
Consular Relations case environmental law see Certain activities
Convention for the Pacific Settlement carried out by Nicaragua in the
of International Disputes see Hague border area; Construction of a Road
Convention 1907 in Costa Rica along the San Juan
cooperation in international law, Hague River; Pulp Mills on the River
Academy course 18 Uruguay
Costa Rica see Certain activities carried equality of interests 119, 280
out by Nicaragua in the border area; equality of states: Hague Peace
Construction of a Road in Costa Rica Conference 1907 31; principle 30;
along the San Juan River; Dispute promotion of 22; safeguarding of 53,
regarding Navigational and Related 57; violation 3
Rights evidence in environmental cases 293
countermeasures 216 exclusive economic zone, boundary
Court of Cartago see Central American delineation 239, 245
 Index 323

Fernandes, Raul 22, 55, 56 Territorial and Maritime Dispute;

Territorial and Maritime Dispute in
Gámez-Bonilla Treaty see Arbitral the Caribbean Sea
Award made by the King of Spain
Guatemala see Nottebohm Case International Court of Justice:
Gulf of Fonseca see Territorial and compliance with judgments 70;
Maritime Dispute discretional intervention see
discretional intervention;
Hague Academy of International Law: enforcement of judgments see
codification of International Law 19; enforcement of judgments;
cooperation in international law 18; guarantees of non-repetition 145,
importance 16; Latin America and 146, 151; interpretation proceedings
League of Nations 19; ‘Latin see interpretation proceedings;
American international law’ 16; Latin jurisdiction 61, 65, 70, 71, 225,
American scholars, influence of 16, 233, 237, 273; Pact of Bogotá see
17, 21; Monroe Doctrine 18; non- Pact of Bogotá; peaceful settlement
intervention 18; peaceful settlement of disputes 128; provisional measures
of disputes 17; self-determination 18; 145, 147; reference from OAS 263,
uti possidetis 18; World Court 17 271; revision of judgment see revision
Hague Convention 1899: drafting 88; of judgment; third party intervention
judgment revision 89 see third party intervention
Hague Convention 1907: judgment international courts, jurisdiction 22
revision 89; ratification 3 international dispute resolution see
Hague Peace Conference 1899: dispute settlement
compulsory arbitration 39; international justice: asylum cases 179;
conventions 28; outcomes 35; direct access of individuals 34; Latin
participants 28; peaceful settlement American proposals 3
of disputes see Hague Convention international law: codification 19, 22;
1899 cooperation in 18; Hague Academy
Hague Peace Conference 1907: access see Hague Academy of International
to justice 30, 32, 34; antecedents 28; Law; Latin American scholars,
compulsory arbitration 30, 39; influence of 16, 17, 21, 22;
contributions 30; equality of states nationality 199, 206; principles
31; international jurisdiction 32; originating in Latin American
non-use of force 30; outcomes 35; municipal law 25
participants 28; peaceful settlement international law norms: nationality and
of disputes see Hague Convention 206; treaty application and 292
1907; Permanent Arbitration international military intervention,
Tribunal 46 consent to 219
Haya de la Torre case: admissibility of international responsibility see
intervention 113; asylum 157; Nicaragua case
background 111, 157; conclusions as interpretation proceedings: about 120;
to 167; Cuban intervention 112; leading cases see Asylum case; Avena
enforcement of judgment 162; case; provisional measures of
judgment 160; judgment on protection 127; use of 129
intervention issue 112, 115; invite outside intervention, States’ right
jurisdiction ruling 161; proceedings to 218
158; right to intervene 113; islands see boundary delineation
surrender of refugee 163; third party
intervention 111, 161 juridical equality see equality of states
Honduras see Arbitral Award made by jurisdiction: asylum 161; consent to 54,
the King of Spain; Land, Island and 161, 168; Court of Cartago 41;
Maritime Frontier dispute; Hague Peace Conference 1907 32;
324 Index

ICJ see International Court of Navigational and Related Rights

Justice; international courts 22; Pact negotiation see obligation to negotiate
of Bogotá 61, 65, 70, 71, 225, 237, Nicaragua see Arbitral Award made by
273 the King of Spain; Certain activities
jus ad bellum see war carried out by Nicaragua in the
border area; Construction of a Road
Land, Island and Maritime Frontier in Costa Rica along the San Juan
dispute: admissibility ruling 91; River; Dispute regarding
application for revision of judgment Navigational and Related Rights;
89; conclusions as to 96; dissenting Land, Island and Maritime Frontier
opinion 93; effect on ICJ’s revision dispute; Nicaragua case; Territorial
procedures 94; original proceedings and Maritime Dispute; Territorial
90; submission of revision application and Maritime Dispute in the
91; uti possidetis 93 Caribbean Sea
land boundaries see boundary Nicaragua case: about 211; admissibility
delineation of intervention 116; armed attack
‘Latin American international law’ 16 213; background 114, 132;
Latin American scholars, influence of conclusions as to 221;
16, 17, 21, 22 countermeasures 216; enforcement of
law of the sea see UNCLOS judgment 132; fight against terrorism
League of Nations, Latin America and 213; invite outside intervention, right
19 to 218; post-judgment developments
legal equality see equality of states 133; procedural non-compliance 117;
refusal of intervention 116; right to
maritime boundaries see boundary intervene 116; third party
delineation intervention 114; use of force 216
Maritime Dispute: about 237; non-intervention: asylum and 173;
Agreement Relating to a Special Hague Academy course 18; principle
Maritime Frontier Zone 242; 11, 174
boundary claims 238; boundary non-use of force: compulsory
course 238; boundary limits 244; arbitration and 33; Hague Academy
Santiago Declaration 239; ‘tacit course 30; principle 29, 114;
agreement’ on maritime boundary violation 132, 133
243; uniqueness of case 246 Nottebohm Case: about 195; application
maritime spaces see boundary of case 204; background 197;
delineation conclusions as to 205; dissenting
Mercosur: arbitral tribunal 310; opinions 201; judgment 198;
creation 11 nationality by naturalization 195;
Mexico see Avena case nationality in municipal and
military intervention, consent to 219 international law 199; nature of
Monroe Doctrine 18 nationality and naturalization 203;
municipal law: international law ‘real and effective’ nationality 200;
principles originating in 25; States’ right to attribute nationality
nationality 195, 199 198

national law see municipal law obligation to negotiate: about 77;

nationality: consent to imposition 202; conclusions as to 85; consent and 78;
international law 199, 206; leading content 81; legal basis 78; nature
case see Nottebohm Case; municipal and scope 79; non-compliance claims
law 195, 199; naturalization 195; 83; Pact of Bogotá 80; process 83
‘real and effective’ nationality 200; obligations to prevent transboundary
States’ right to attribute 198 harm see Pulp Mills on the River
navigational rights see Dispute regarding Uruguay
 Index 325

ocean, access to 281 management of shared natural

Organization of American States: resources 314; obligations to prevent
Charter 19, 72, 114; creation 11; transboundary harm 313, 315; post-
Diplomatic Asylum Convention 180; judgment developments 318;
dispute settlement 64; Pact of procedural obligations 311, 314;
Bogotá 63, 68; peaceful settlement right of veto 313; right to have say
of disputes 68; reference to ICJ 263, 313; substantive obligations 311;
271; Territorial Asylum Convention Uruguay’s compliance and non-
180 compliance 317

Pact of Bogotá: compliance with ICJ refugees, asylum 163

judgments 70; condemnation of war request for interpretation of judgment
24; denunciation 226; dispute see interpretation proceedings
settlement 63; functioning 71; ICJ revision of judgment: application for
jurisdiction 61, 65, 70, 71, 225, 88; consent to 94; leading case see
237, 273; obligation to negotiate 80; Land, Island and Maritime Frontier
peaceful settlement of disputes 17; dispute
restrictions and reservations 67; right to intervene see third party
structure 63 intervention
Paraguay see Vienna Convention on river boundaries see boundary
Consular Relations case delineation
PCIJ see Permanent Court of
International Justice San Juan River see Construction of a
peace and security see Nicaragua case Road in Costa Rica along the San
peaceful settlement of disputes: Juan River
American Treaty on Pacific Santiago Declaration 239
Settlement see Pact of Bogotá; Court say, right to have 313
of Cartago 47; Hague Academy seas see boundary delineation;
course 17; Hague Convention 1899 UNCLOS
see Hague Convention 1899; Hague Second Hague Peace Conference see
Convention 1907 see Hague Hague Peace Conference 1907
Convention 1907; International self-determination, Hague Academy
Court of Justice 128; OAS Charter course 18
68; principle 11; United Nations
Charter 135 Territorial and Maritime Dispute: about
Permanent Arbitration Tribunal 46 225; ad hoc chamber, use of 273;
Permanent Court of International change in Nicaragua’s claim 226;
Justice: compliance with judgments complexity of case 273; customary
131; creation 22, 47, 50, 53, 63, 89; international law 230; delimitation
historical overview 50; importance procedure 232; delineation procedure
52; jurisdiction 34, 53, 63; Latin 230, 232, 234; extended continental
American contribution 50, 58; Latin shelf 228, 233; Gulf of Fonseca,
American judges 11, 19; Statute 34, closing line 281; Gulf of Fonseca,
51, 89; tenure 52; World Court 50 condominium of 280; Honduras’s
Peru see Asylum case; Haya de la Torre Pacific Ocean access 281; ICJ
case; Maritime Dispute jurisdiction 273; information used for
possession see uti possidetis delineation 233; islands 277;
provisional measures 127, 145, 147, judgment on the merits 274; land
294 boundary 275; maritime spaces 279;
Pulp Mills on the River Uruguay: about Nicaragua’s intervention 282; public
309; customary obligations 315; order of oceans 234; single
environmental impact assessment, continental shelf, principle of 226;
obligation to carry out 317; sovereign rights 228; uti possidetis 275
326 Index

Territorial and Maritime Dispute in the United Nations Security Council:

Caribbean Sea: about 250; angle- abstention from voting 136;
bisector method of boundary implementation of ICJ judgments
delimitation 250, 254; background 137; procedural matters and other
251; delimitation of maritime matters distinguished 135; veto 136;
boundary 254; judgment 252; voting procedure 135
sovereignty over islands 250, 252, United States: Avena case see Avena
259; uti possidetis 251, 253, 260 case; constitution as model 8;
Territorial Asylum Convention 180 consular relations see Vienna
territorial limits see boundary Convention on Consular Relations
delineation case; Monroe Doctrine 18;
territorial sea see boundary delineation Nicaragua case see Nicaragua case
terrorism, fight against 213 Uruguay see Pulp Mills on the River
third party intervention: about 109; Uruguay
asylum 161; conditions 109; consent use of force: Nicaragua case see
to 100, 107, 110; discretional Nicaragua case; non-use principle see
intervention see discretional non-use of force; United Nations
intervention; ICJ’s revised approach Charter 140; war see war
117; leading cases see Haya de la uti possidetis 18, 93, 251, 253, 260,
Torre case; Nicaragua case; problems 269, 275
111; right to intervene 113, 116
transboundary environmental harm see veto: right of 313; United Nations
Certain activities carried out by Security Council 136
Nicaragua in the border area; Vienna Convention on Consular
Construction of a Road in Costa Rica Relations: content 184; ratification
along the San Juan River; Pulp Mills 184
on the River Uruguay Vienna Convention on Consular
treaty application, international law Relations case: background 145;
norms and 292 binding nature of ICJ provisional
measures 145, 147; conclusions as to
UNCLOS: boundary delineation see 155; guarantees of non-repetition
boundary delineation; continental 145, 146, 151
shelf 226; exclusive economic zone
239, 245; ICJ jurisdiction 233; war: collective self-defence 212;
islands 253; public order of oceans condemnation of 24; law of war 23;
234; ratification 231; Santiago leading case see Nicaragua case; self-
Declaration 239; territorial sea 250, defence 212; use of force 216
255, 257; unity, principle of 228 World Court: Hague Academy course
United Nations Charter: 17; ICJ see International Court of
implementation of ICJ judgments Justice; PCIJ see Permanent Court of
137; peaceful settlement of disputes International Justice
135; use of force 140