Separate opinion of Judge Cançado Trindade

SEPARATE OPINION OF JUDGE C ANÇADO T RINDADE

Table of Contents

Paragraphs

I. Prolegomena...........................................................................1-5.................................

II. Preliminary Objections and Merits: Reasoning in Search of Justice....................6-11.

III. Jurisdictional Basis and the Merits: Case-Law of the PCIJ and ICJ

1. Joinder of Preliminary Objections to the Merits..................................12-15.............

2. Not Exclusively “Preliminary” Character of Objections to Jurisdiction and (and

Admissibility)...................................................................16-22................................

IV. Relevance of General Principles of International Procedural Law

1. General Principles and the Foundations of the International Legal Order .........23-25

2. General Principles in Distinct Incidental Proceedings............................26-31..........

3. General Principles in the Joinder of Proceedings.................................32-35............

4. General Principles in Advisory Proceedings ......................................36-38..............

5. General Assessment...............................................................39-40...........................

V. General Principles of International Law, Latin American International Legal
Doctrine, and the Significance of the Pact of Bogotá................................41-53............

VI. The Pact of Bogotá and Judicial Settlement by the ICJ...............................54-58..........

VII. Concluding Observations: The Third Way (Troisième Voie/Tercera Vía) under
Article 79 (9) of the Rules of Court — Objection Not of an Exclusively
Preliminary Character...............................................................59-67.............................

I. PROLEGOMENA

1. I have voted in favour of the adoption today, 24 September 2015, of the present Judgment
on Preliminary Objection in the case concerning the Obligation to Negotiate Access to the Pacific
Ocean, between Bolivia and Chile, whereby the International Court of Justice (ICJ) has found that

it has jurisdiction to consider the claim lodged with it under Article XXXI of the 1948 American
Treaty on Pacific Settlement (Pact of Bogotá). Yet, there are certain aspects of the question
decided by the Court, to which I attribute importance for its proper understanding, which are not
properly reflected in the reasoning of the present Judgment. I feel thus obliged to dwell upon them,
in the present Separate Opinion. - 2 -

2. In particular, I find the treatment dispensed by the ICJ in the present Judgment, to the
jurisdictional regime of the Pact of Bogotá, and in particular to the basis of its own jurisdiction
(Article XXXI of the Pact) (paras. 37 and 54) as well as to the relevant provision (Article 79 (9)) of
the Rules of Court (paras. 52-53), far too succinct. In order to rest on a more solid ground, the
Court should, in my perception, have dwelt further upon those provisions, faced as it was with the

contention that the respondent State’s characterization of the subject-matter of the present dispute
would amount to a refutation of the applicant State’s case on the merits (para. 52).

3. The ICJ should, in my perception, have devoted as much attention to Article XXXI of the

Pact and Article 79 (9) of the Rules of Court as it did as to Article VI of the Pact (paras. 24
and 38-50). In the present Separate Opinion, I deem it fit to stress the importance of the
aforementioned provisions, in relation to the factual context of the cas d’espèce and the handling of
the question lodged with the Court. To that effect I shall develop my considerations that follow. I
shall begin by addressing the reasoning, in search of justice, as to preliminary objections and the

merits.

4. I shall next consider the relation between the jurisdictional basis and the merits in the
case-law of the Hague Court (PCIJ and ICJ), focusing, earlier on, on the joinder of preliminary
objections to the merits, and then on the not exclusively “preliminary” character of objections to

jurisdiction (and admissibility). I shall then dwell upon the relevance of general principles of
international procedural law, as related to the foundations of the international legal order, and on
their incidence, in contentious cases, on distinct incidental proceedings (preliminary objections,
provisional measures, counter-claims and intervention), on the joinder of proceedings, as well as on
advisory proceedings.

5. After an assessment of the matter, I shall proceed to consider the general principles of
international law, Latin American doctrine and the significance of the 1948 Pact of Bogotá. Last
but not least, the way will then be paved for the presentation of my concluding observations on the

third way (troisième voie/tercera vía) devised by Article 79 (9) of the Rules of Court, namely, that
of the determination of an objection not of an exclusively preliminary character, leading to the
opening of further proceedings and moving into the merits of the case.

II. RELIMINARY O BJECTIONS AND M ERITS : REASONING

INS EARCH OF J USTICE

6. In effect, may I begin by pointing out that a clear cut separation between the procedural
stages of preliminary objections and merits reflects the old voluntarist-positivist conception of
international justice subjected to State consent. Yet, despite the prevalence of the positivist

approach in the era of the Permanent Court of International Justice (PCIJ), soon the old Hague
Court reckoned the need to join a preliminary objection to the merits (cf. infra). A preliminary
objection to jurisdiction ratione materiae is more likely to appear related to the merits of a case
than an objection to jurisdiction ratione personae or ratione temporis . I shall seek to clarify this in
my considerations that follow.

7. In effect, to start with, the search for justice transcends any straight-jacket conception of
international legal procedure. In my Dissenting Opinion in the ICJ’s Judgment on Preliminary

Cf., to this effect, F. Ammoun, “La jonction des exceptions préliminaires au fond en Droit international
public”, in Il processo internazionale  Studi in onore di G. Morelli, 14 Comunicazioni e Studi (1975) pp. 34 and 38,
and cf. p. 21. - 3 -

Objections of 01.04.2011 in the case concerning the Application of the Convention on the
Elimination of All Forms of Racial Discrimination (Georgia versus Russian Federation), I laid
down in depth my criticisms of the voluntarist approach to the Court’s jurisdiction. As I do not

purport to retake here the consideration of this particular issue, I limit myself to refer to the
pertinent passages of my aforementioned Dissenting Opinion (paras. 37-63, 79-87, 140, 167
and 181) in this respect.

8. Moreover, in the handling of this issue, the Hague Court (PCIJ and ICJ) has, throughout
its history, been attentive to the interests of the parties and the preservation of the equilibrium
between them in the course of the procedure. Hence the constant recourse by the Court to the
principle of the sound administration of justice (la bonne administration de la justice); the

acknowledgment of this principle, in the course of in2idental proceedings of the ICJ, has further
had repercussion in contemporary expert writing .

9. There are successive examples in the case-law of the Hague Court disclosing its reliance

on the principle of the sound administration of justice (la bonne administration de la justice).
Early in its life, the PCIJ, in the Panevezys-Saldutiskis Railway (Order of 30.06.1938), in deciding
to join Lithuania’s preliminary objections to the merits, expressly stated that

“the Court may order the joinder of preliminary objections to the merits, whenever the

interests of the good administration of justice require it” (p. 56).

10. This célèbre obiter dictum was kept in mind, along the years, by the ICJ as well
(cf. infra). In the course of its prolonged handling of the Barcelona Traction case, it was

repeatedly pointed out, in expert writing in the mid-sixties, that, even if the joinder to the merits
appeared as an exceptional measure, there were situations in which the clear-cut separation of a
preliminary objection from the merits could raise much difficulty, the solution thus being the
joinder. Given the straight connection between the preliminary objection and the merits, the

joinder would correspond to a necessit3, in the interests of the sound administration of justice (la
bonne administration de la justice) .

11. In all its historical trajectory, the PCIJ, and later on the ICJ from the very beginning of its

operation, made it clear that the Court is master of its procedure. It does not and cannot accept
straight-jacket conceptions of its own procedure; reasoning is essential to its mission of realization
of justice. The path followed has been a long one: for decades the idea of a “joinder” of a
preliminary objection to the merits found expression in the then Rules of Court; from the early

seventies onwards, the Rules of Court began to provide for further proceedings in the cases, given
the fact that the objections at issue did not disclose an exclusively “preliminary” character (infra).

Cf., inter alia, e.g., Hironobu Sakai, “La bonne administration de la justice in the Incidental Proceedings of the
International Court of Justice”, 55 Japanese Yearbook of International Law (2012) pp. 110-133; R. Kolb, “La maxime de
la ‘bonne administration de la justice’ dans la jurisprudence internationale”, in: La bonne administration de la justice
internationale, 27 L’Observateur des Nations Unies (2009)-II, pp. 5-21.
3
Cf. M. Mabrouk, Les exceptions de procédure devant les juridictions internationales, Paris, LGDJ, 1966,
pp. 286-289; G. Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour Internationale, Paris, Pédone,
1967, pp. 194-198; E. Grisel, Les exceptions d’incompétence et d’irrecevabilité dans la procédure de la Cour
Internationale de Justice, Berne, Éd. H. Lang & Cie., 1968, pp. 175-180 and 182. - 4 -

III. URISDICTIONAL B ASIS AND THE M ERITS : CASE -LAW OF
THE PCIJ AND ICJ

1. Joinder of Preliminary Objections to the Merits

12. Early in its history, the old PCIJ decided to join preliminary objections to the merits of
the cases. It did so, for the first time, in the Administration of the Prince von Pless case (Order
of 04.02.1933), wherein it stated that the question before it concerned the merits of the case, and
thus it could not pass upon “the question of jurisdiction until the case ha[d] been argued upon the
merits” (p. 15); it decided to join Poland’s preliminary objection to the merits (p. 16).

13. In the same decade, the PCIJ, in the cases Pajzs, Csáky and Esterházy (Order
of 23.05.1936), having found the questions raised in Yugoslavia’s objections “too intimately” and
“too closely interconnected” with Hungary’s submissions on the merits, ordered likewise the
joinder of those objections to the merits (p. 9). Likewise, shortly afterwards, in the Losinger (Order

of 27.06.1936), the PCIJ again ordered the joinder, having found that the plea to the jurisdiction
appeared as a “defence on the merits” (pp. 23-24). And the PCIJ, once more, ordered the joinder of
preliminary objections to the merits in the aforementioned Panevezys-Saldutiskis Railway case
(Order of 30.06.1938, pp. 55-56).

14. For its part, the ICJ, in the handling of subsequent cases, was soon also faced with
circumstances which led it to determine the joinder of a preliminary objection of the merits. Thus,
in the case of Certain Norwegian Loans (28.09.1956), the ICJ decided, on the basis of an
understanding between the parties, to join the preliminary objections to the merits (p. 74). Shortly

afterwards, in the case of the Right of Passage over Indian Territory (Judgment on Preliminary
Objections, of 26.11.1957), the ICJ pointed out that any evaluation of India’s fifth and sixth
preliminary objections would risk prejudging the merits; accordingly, it decided to join those
objections to the merits (pp. 150 and 152).

15. Later on, in the case of Barcelona Traction (Judgment on Preliminary Objections,
of 24.07.1964), the Hague Court, recalling its case-law (PCIJ and ICJ) on the matter (pp. 41-42),
decided likewise to join Spain’s third and fourth preliminary objections to the merits (p. 46). In the
aftermath of its prolonged and cumbersome handling of the Barcelona Traction case (1964-1970),
the ICJ deemed it fit to introduce, in 1972, a change in the wording of the provision at issue of the

Rules of Court. The PCIJ Rules of Court (dating b4ck to 1936) referred to the Court’s deciding on
the preliminary objection or joining it to the merits . That provision survived in the ICJ Rules of
Court of 1946, and until the amendments introduced into the Rules in 1972 (cf. infra). The
provision then adopted in 1972 has been passed on to the Rules of Court of 1978 and 2000 (infra),

and remains the same to date.

Paragraph 5 of Article 62 of the Rules of Court (of 1936) provided that:  “After hearing the Parties the
Court shall give its decision on the objection or shall join the objection to the merits. If the Court overrules the objection
or joins it to the merits, it shall once more fix time-limits for the further proceedings”. - 5 -

2. Not Exclusively “Preliminary” Character of Objections
to Jurisdiction (and Admissibility)

5
16. The 6hange in the Ru7es of Court adopted in 1972 , and subsequently maintained in the
Rules of 1978 , and of 2000 , was object of attention in the Court’s Judgments on Jurisdiction and
Admissibility (of 26.11.1984) and on the Merits (of 27.06.1986) in the Nicaragua versus
United States case. In the 1984 Judgment the ICJ, having found that the issue before it concerned

“matters of substance relating to the merits of the case”, then acknowledged that “the procedural
technique formerly available of joinder of preliminary objections to the merits has been done away
with since the 1972 revision of the Rules of Court” (para. 76).

17. Then, in its 1986 Judgment on the same case (merits), the ICJ explained the reason of the
change introduced in the relevant provision of the Rules of Court, in the following terms:

“The present case is the first in which the Court has had occasion to exercise the

power first provided for in the 1972 Rules of Court to declare that a preliminary
objection ‘does not possess, in the circumstances of the case, an exclusively
preliminary character’. It may therefore be appropriate to take this opportunity to
comment briefly on the rationale of this provision of the Rules, in the light of the

problems to which the handling of preliminary objections has given rise. In exercising
its rule-making power under Article 30 of the Statute, and generally in approaching
the complex issues which may be raised by the determination of appropriate
procedures for the settlement of disputes, the Court has kept in view an approach

defined by the [PCIJ]. That Court found that it was at liberty to adopt

‘the principle which it considers best calculated to ensure the
administration of justice, most suited to procedure before an international

tribunal and most in conformity with the fundamental principles of
international law’ (Mavrommatis Palestine Concessions [case], P.C.I.J.,
[Judgment of 30.08.1924,] p. 16).

Under the Rules of Court dating back to 1936 (which on this point reflected still

earlier practice), the Court had the power to join an objection to the merits ‘whenever
the interests of the good administration of justice require it’ (Panevezys-Saldutiskis
Railway [case, Order of 30.06.1938, p. 56]), and in particular where the Court, if it
were to decide on the objection, ‘would run the risk of adjudicating on questions

which appertain to the merits of the case or of prejudging their solution’ (ibid.). If this
power was exercised, there was always a risk, namely that the Court would ultimately
decide the case on the preliminary objection, after requiring the parties fully to plead

the merits,  and this did in fact occur ([in the] Barcelona Traction [case, Judgment
of 1970, p. 3]). The result was regarded in some quarters as an unnecessary
prolongation of an expensive and time-consuming procedure.

Paragraph 7 of Article 69 of the Rules of Court (of 1972) provided that:  “After hearing the parties, the
Court shall give its decision in the form of a judgment, but which it shall either uphold the objection, reject it, or declare
that the objection does not possess, in the circumstances of the case, an exclusively preliminary character. If the Court

rejects the objection or declares that it does not possess an exclusively preliminary character, it shall fix time-limits for
the further proceedings”.
Paragraph 7 of Article 79 of the Rules of Court (of 1978) had exactly the same content and phraseology of
Article 69 (7) of the previous Rules of Court (of 1972).
7
Paragraph 9 of Article 79 of the current Rules of Court (of 2000) has likewise the same content and
phraseology of Article 79 (7) of the previous Rules of Court (of 1978). - 6 -

Taking into account the wide range of issues which might be presented as
preliminary objections, the question which the Court faced was whether to revise the
Rules so as to exclude for the future the possibility of joinder to the merits, so that
every objection would have to be resolved at the preliminary stage, or to seek a

solution which would be more flexible. The solution of considering all preliminary
objections immediately and rejecting all possibility of a joinder to the merits had many
advocates and presented many advantages. (...) However, that does not solve all
questions of preliminary objections, which may, as experience has shown, be to some

extent bound up with the merits. The final solution adopted in 1972, and maintained
in the 1978 Rules, concerning preliminary objections is the following: the Court is to
give its decision

‘by which it shall either uphold the objection, reject it, or declare that the

objection does not possess, in the circumstances of the case, an
exclusively preliminary character. If the Court rejects the objection, or
declares that it does not possess an exclusively preliminary character, it
shall fix time-limits for the further proceedings’ (Art. 79, para. 7).

(...) The new rule (...) thus presents one clear advantage: that it qualifies certain
objections as preliminary, making it quite clear that when they are exclusively of that
character they will have to be decided upon immediately, but if they are not, especially
when the character of the objections is not exclusively preliminary because they
contain both preliminary aspects and other aspects relating to the merits, they will

have to be dealt with at the stage of the merits. This approach also tends to discourage
the unnecessary prolongation of proceedings at the jurisdictional stage” (paras. 38-41).

18. In this respect, at the time of change in 1972 of the Rules of Court, a former

Latin American Judge of the ICJ observed that, in face of the provision in Article 62 (5) of the
1946 Rules of Court as to the possible joinder of a preliminary objection to the merits, the ICJ was
worried with procedural delays, with “duplication of work” and “repetition of arguments” . Hence 8
the amendments introduced the new provision of the Rules of Court, deleting the express reference
to the joinder, so as “to provide greater flexibility” and to avoid procedural delays, in sum, to

achieve 9 more orderly and expeditious and “a less onerous administration of international
justice” .

19. From the Court’s decision in the Nicaragua versus United States case (1984-1986,

supra) onwards, the ICJ has pursued this new outlook to the point at issue in its case-law. The
Court has thus moved on to further proceedings (on the merits) when the objections lodged before
it do not show to have a “preliminary” character. Thus, in its two Judgments on Preliminary
Objections (of 27.02.1998) in the Lockerbie cases, the Court saw it fit again to explain the changes

effected (in 1972) in its Rules of Court (the new Article 79). Article 79 (9) of the current Rules of
Court is clear, in that, if an objection seems to touch on the merits of the case, the Court may
declare that it does not possess an “exclusively preliminary character”, and move on to further
proceedings (on the merits). This amounted to a new outlook of what was earlier referred to as 10
joining the preliminary objection to the merits. In the Lockerbie cases, the Court pondered that

8
E. Jiménez de Aréchaga, “The Amendments to the Rules of Procedure of the International Court of Justice”,
67 American Journal of International Law (1973) pp. 11 and 13.
Ibid., pp. 21-22.

1Article 62 (5) of the previous Rules of Court. - 7 -

“The solution adopted in 1972 was ultimately not to exclude the power to
examine a preliminary objection in the merits phase, but to limit the exercise of that
power, by laying down the conditions more strictly” (paras. 48 and 49, respectively, of
the two Judgments of 27.02.1998).

20. This new outlook,  the ICJ proceeded,  presented the “clear advantage” of, once
finding that the character of the objections at issue was “not exclusively preliminary”, discouraging
the “unnecessary prolongation of proceedings at the jurisdictional stage”. The ICJ then found, in
the Lockerbie cases, that the respective objections of the United States and the United Kingdom did

not have “an exclusively preliminary character” within the meaning of Article 79 of the Rules, and
could only be considered when the Court reached the merits of the case (paras. 50 and 51,
respectively, of the two Judgments of 27.02.1998).

21. In the same line of thinking, shortly afterwards, in the case of the Land and Maritime
Boundary between Cameroon and Nigeria (Judgment on Preliminary Objections, of 11.06.1998),
the ICJ found that it could not give a decision on Nigeria’s eighth preliminary objection “as a
preliminary matter”, and that it had “of necessity (...) to deal with the merits of Cameroon’s
request” (para. 116). The Court concluded and declared that the eighth preliminary objection did

not have, in the circumstances of the case, “an exclusively preliminary character” (paras. 117-118).

22. One decade later, in its Judgment on Preliminary Objections (of 18.11.2008) in the case
of the Application of the Convention against Genocide (Croatia versus Serbia), the ICJ, found that
Serbia’s second preliminary objection did not possess, in the circumstances of the case, “an

exclusively preliminary character” (paras. 130 and 146). Very recently, in its Judgment
of 03.02.2015, the ICJ at last delivered its Judgment on the merits of that case. We are here in a
domain wherein general principles of law play an important role, whether they are substantive
principles (such as those of pacta sunt servanda, or of bona fides), or procedural principles, to
which I turn attention now.

IV. RELEVANCE OF G ENERAL P RINCIPLES OF INTERNATIONAL
PROCEDURAL L AW

1. General Principles and the Foundations of
the International Legal Order

23. In my perception, recourse to general principles of international procedural law is in
effect ineluctable, in the realization of justice. General principles are always present and relevant,
at substantive and procedural levels. Such principles orient the interpretation and application of

legal norms. They rest on the foundations of any legal system, which is made to operate on the
basis of fundamental principles. Ultimately, without principles there is truly no legal system.
Fundamental principles form the substratum of the legal order itself .

24. May it here be recalled that, in another case, like the present one, opposing two other
Latin American States (Argentina and Uruguay), the case concerning Pulp Mills on the River
Uruguay (Judgment of 20.04.2010), I deemed it fit to call the Court’s attention, in my Separate
Opinion, to the fact that both contending parties, Argentina and Uruguay, had expressly invoked

1A.A. Cançado Trindade, International Law for Humankind  Towards a New Jus Gentium, 2nd. rev. ed.,
Leiden/The Hague, Nijhoff/The Hague Academy of International Law, 2013, pp. 58-61; and cf. A.A. Cançado Trindade,
“Foundations of International Law: The Role and Importance of Its Basic Principles”, in XXX Curso de Derecho Internacional
Organizado por el Comité Jurídico Interamericano  OEA (2003) pp. 359-415. - 8 -

general principles of law in the course of the contentious proceedings (para. 46). In doing so, I
added, they were both

“being faithful to the long-standing tradition of Latin American international legal
thinking, which has always been particularly attentive and devoted to general
12
principles of law, in the contexts of both the formal ‘sources’ of international law as
well of codification of international law ” (para. 47).

1Andrés Bello, Principios de Derecho Internacional (1832), 3rd. ed., Paris, Libr. Garnier Hermanos, 1873,
pp. 3 et seq.; C. Calvo, Manuel de droit international public et privé, 3rd. rev. ed., Paris, A. Rousseau Ed., 1892, ch. I,

pp. 69-83; L.M. Drago, La República Argentina y el Caso de Venezuela, Buenos Aires, Impr. Coni Hermanos, 1903,
pp. 1-18; L.M. Drago, La Doctrina Drago  Colección de Documentos (pres. S. Pérez Triana), London, Impr.
Wertheimer, 1908, pp. 115-127 and 205; A.N. Vivot, La Doctrina Drago, Buenos Aires, Edit. Coni Hermanos, 1911,
pp. 39-279; II Conférence de la Paix, Actes et discours de M. Ruy Barbosa, La Haye, W.P. Van Stockum, 1907,
pp. 60-81, 116-126, 208-223 and 315-330; Ruy Barbosa, Obras Completas, vol. XXXIV (1907)-II: A Segunda
Conferência da Paz, Rio de Janeiro, MEC, 1966, pp. 65, 163, 252, 327 and 393-395; Ruy Barbosa, Conceptos Modernos

del Derecho Internacional, Buenos Aires, Impr. Coni Hermanos, 1916, pp. 28-29 and 47-49; Clovis Bevilaqua, Direito
Público Internacional (A Synthese dos Princípios e a Contribuição do Brazil), vol. I, Rio de Janeiro, Livr.
Francisco Alves, 1910, pp. 11-15, 21-26, 90-95, 179-180 and 239-240; Raul Fernandes, Le principe de l´égalité
juridique des États dans l´activité internationale de l´après-guerre, Geneva, Impr. A. Kundig, 1921, pp. 18-22 and 33;
J.-M. Yepes, “La contribution de l’Amérique Latine au développement du Droit international public et privé”, 32 Recueil
des Cours de l’Académie de Droit International de La Haye [RCADI] (1930) pp. 731-751; J.-M. Yepes, “Les problèmes
fondamentaux du droit des gens en Amérique”, 47 RCADI (1934) p. 8; Alejandro Álvarez, Exposé de motifs et

Déclaration des grands principes du Droit international moderne, 2nd. ed., Paris, Éds. Internationales, 1938, pp. 8-9,
13-23 and 51; C. Saavedra Lamas, Por la Paz de las Américas, Buenos Aires, M. Gleizer Ed., 1937, pp. 69-70, 125-126
and 393; Alberto Ulloa, Derecho Internacional Público, vol. I, 2nd. ed., Lima, Impr. Torres Aguirre, 1939, pp. 4, 20-21,
29-30, 34, 60, 62 and 74; Alejandro Álvarez, La Reconstrucción del Derecho de Gentes  El Nuevo Orden y la
Renovación Social, Santiago de Chile, Ed. Nascimento, 1944, pp. 19-25 and 86-87; Ph. Azevedo, A Justiça
Internacional, Rio de Janeiro, MRE, 1949, pp. 24-26, and cf. pp. 9-10; J.-C. Puig, Les principes du Droit international
public américain, Paris, Pédone, 1954, p. 39; H. Accioly, Tratado de Direito Internacional Público, 2nd. ed., vol. I,

Rio de Janeiro, IBGE, 1956, pp. 32-40; Alejandro Alvarez, El Nuevo Derecho Internacional en Sus Relaciones con la
Vida Actual de los Pueblos, Santiago, Edit. Jurídica de Chile, 1961, pp. 155-157, 304 and 356-357; A. Gómez Robledo,
Meditación sobre la Justicia, México, Fondo de Cultura Económica, 1963, p. 9; R. Fernandes, Nonagésimo Aniversário 
Conferências e Trabalhos Esparsos, vol. I, Rio de Janeiro, M.R.E., 1967, pp. 174-175; A.A. Conil Paz, Historia de la
Doctrina Drago, Buenos Aires, Abeledo-Perrot, 1975, pp. 125-131; E. Jiménez de Aréchaga, “International Law in the
Past Third of a Century”, 159 RCADI (1978) pp. 87 and 111-113; L.A. Podestá Costa and J.M. Ruda, Derecho

Internacional Público, 5th. rev. ed., vol. I, Buenos Aires, Tip. Ed. Argentina, 1979, pp. 17-18 and 119-139;
E. Jiménez de Aréchaga, El Derecho Internacional Contemporáneo, Madrid, Ed. Tecnos, 1980, pp. 107-141;
A.A. Cançado Trindade, Princípios do Direito Internacional Contemporâneo, Brasília, Edit. University of Brasília, 1981,
pp. 1-102 and 244-248; Jorge Castañeda, Obras Completas  vol. I: Naciones Unidas, Mexico, S.R.E./El Colegio de
México, 1995, pp. 63-65, 113-125, 459, 509-510, 515, 527-543 and 565-586; [Various Authors,] Andrés Bello y el Derecho
(Colloquy of Santiago de Chile of July 1981), Santiago, Edit. Jurídica de Chile, 1982, pp. 41-49 and 63-76; D. UribeVargas,

La Paz es una Trégua  Solución Pacífica de Conflictos Internacionales, 3rd. ed., Bogotá, Universidad Nacional de
Colombia, 1999, p. 109; A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, Rio de Janeiro,
Edit. Renovar, 2002, pp. 91-140 and 863-889 and 1039-1071.
13
Lafayette Rodrigues Pereira, Princípios de Direito Internacional, vols. I-II, Rio de Janeiro, J. Ribeiro dos Santos
Ed., 1902-1903, pp. 1 et seq.; A.S. de Bustamante y Sirvén, La II Conferencia de la Paz Reunida en La Haya en 1907, vol. II,
Madrid, Libr. Gen. de V. Suárez, 1908, pp. 133, 137-141, 145-147, 157-159, and cf. also vol. I, pp. 43, 80-81 and 96;
Epitacio Pessôa, Projecto de Código de Direito Internacional Público, Rio de Janeiro, Imprensa Nacional, 1911, pp. 5-323;
F.-J. Urrutia, “La codification du droit international en Amérique”, 22 RCADI (1928) pp. 113, 116-117 and 162-163;
G. Guerrero, La codification du droit international, Paris, Pédone, 1930, pp. 11, 13, 16, 152, 182 and 175; J.-M. Yepes, “La
contribution de l’Amérique Latine au développement du Droit international public et privé”, 32 RCADI (1930) pp. 714-730

and 753-756; Alejandro Álvarez, “Méthodes de la codification du droit international public  Rapport”, in Annuaire de
l’Institut de Droit International (1947) pp. 38, 46-47, 50-51, 54, 64 and 69; J.-M. Yepes, Del Congreso de Panama a la
Conferencia de Caracas (1826-1954), Caracas, M.R.E., 1955, pp. 143, 177-178, 193 and 203-208; R.J. Alfaro, “The Rights
and Duties of States”, 97 RCADI (1959) pp. 138-139, 145-154, 159 and 167-172 ; G.E. do Nascimento e Silva, “A
Codificação do Direito Internacional”, 55/60 Boletim da Sociedade Brasileira de Direito Internacional (1972-1974) pp. 83-84
and 103; R.P. Anand, “Sovereign Equality of States in International Law”, 197 RCADI (1986) pp. 73-74;

A.A. Cançado Trindade, “The Presence and Participation of Latin America at the II Hague Peace Conference of 1907”, in
Actualité de la Conférence de La Haye de 1907, II Conférence de la Paix (Colloque du centenaire, 2007  ed. Yves Daudet),
La Haye/Leiden, Académie de Droit International de La Haye / Nijhoff, 2008, pp. 51-84. - 9 -

25. The ICJ has remained attentive to general principles (cf. supra) in the exercise of the
international judicial function. As master of its procedure, as well as of its jurisdiction, the Court is

fully entitled to determine freely the order in which it will resolve the issues raised by the
contending parties. And, in doing so, it is not limited by the arguments raised by the contending
parties, as indicated by the principle jura novit curia. The Court knows the Law, and, in settling
disputes, attentive to the equality of parties, it also says what the Law is (juris dictio, jus dicere).

2. General Principles in Distinct Incidental Proceedings

26. Along the years, as one would expect, the principle of the sound administration of justice
(la bonne administration de la justice) has been resorted to in respect of distinct kinds of incidental
proceedings (Rules of Court, Articles 73-86), namely, preliminary objections, provisional
measures of protection, counter-claims and intervention. The aforementioned principle has marked
its presence, as already seen in the present Separate Opinion, in the handling of the incidental
proceedings of preliminary objections (cf. supra). Recourse has likewise been made to that
principle, in recent years, in the other incidental proceedings of provisional measures,

counter-claims and intervention. May I briefly refer to its incidence, as I perceive it, in these other
incidental proceedings.

27. In so far as provisional measures of protection are concerned, in my Dissenting Opinion
in the case of Questions Relating to the Obligation to Prosecute or to Extradite (Belgium versus
Senegal, Order of 28.05.2009), I deemed it fit to recall that, in its case-law, the ICJ has ordered
provisional measures so as to contribute “to secure la bonne administration de la justice”

(para. 28). I pondered that “in the case-law itself of the ICJ there are already elements disclosing
the concern of the Court, when issuing Orders of provisional measures, to strive towards achieving
a good administration of justice” (para. 29). I further warned that, in the consideration of the cas
d’espèce, the Court should keep in mind that “the right to the realization of justice assumes a
central place, and a paramount importance, and becomes thus deserving of particular attention”
(para. 29).

28. As to counter-claims, in my Dissenting Opinion in the case of Jurisdictional Immunities
of the State (Germany versus Italy, Order of 06.07.2010), I felt obliged to stress that

“(...) Without Italy’s counter claim of reparations for damages arising of war crimes,
the Court will now have a much narrower horizon to pronounce on Germany’s
(original) claim of State immunity. The present decision of the Court made tabula
rasa of its own previous reasonings, and of 70 years of the more enlightened legal

doctrine on the matter, to the effect that counter-claims do assist in achieving the
sound administration of justice (la bonne administration de la justice) and in securing
the needed equilibrium between the procedural rights of the contending parties.

In any case, as the Court’s majority decided summarily to discard the
counter-claim as ‘inadmissible as such’,  with my firm dissent,  it should at least
have instructed itself properly by holding, first, public hearings to obtain further

clarifications from the contending parties. It should not have taken the present
decision without first having heard the contending parties in a public sitting, for five
reasons, namely: a) first, as a basic requirement ensuing from the principle of
international procedural law of the sound administration of justice (la bonne
administration de la justice); b) secondly, because counter-claims are ontologically
endowed with autonomy, and ought to be treated on the same footing as the original
claims, that they intend to neutralize (supra); c) thirdly, claims and counter-claims,

‘directly connected’ as they ought to be, require a strict observance of the principe du - 10 -

contradictoire in their handling altogether; d) fourthly, only with the faithful

observance of the principe du contradictoire can the procedural equality of the parties
(applicant and respondent, rendered respondent and applicant by the counter-claim) be
secured; and e) fifthly, last but not least, the issues raised by the original claim and
the counter-claim before the Court are far too important  for the settlement of the

case as well as for the present and the future of International Law,  to have been dealt
with by the Court in the way it did, summarily rejecting the counter-claim”
(paras. 29-30).

29. And in so far as intervention is concerned, again in the case in the case of Jurisdictional
Immunities of the State (Germany versus Italy, intervention of Greece, Order of 04.07.2011), I

developed my reflections on the importance of sound reasoning in that respect (paras. 1-61). More
recently, in the Whaling in the Antarctic case (Australia versus Japan, intervention of New Zealand,
Order of 06.02.2013), I pondered, in my Separate Opinion, that

“The resurgere of intervention is thus most welcome, propitiating the sound
administration of justice (la bonne administration de la justice), attentive to the needs

not only of all States concerned but of the international community as a whole, in the
conceptual universe of the jus gentium of our times” (para. 68).

30. In sum, the principle of the sound administration of justice (la bonne administration de la
justice) permeates the considerations of all the aforementioned incidental proceedings before the
Court, namely, preliminary objections, provisional measures of protection, counter-claims and

intervention. As expected, general principles mark their presence, and guide, all Court
proceedings. The factual contexts of the cases vary, but the incidence of those principles always
takes place. Other illustrations, which abound, can be here referred to.

31. A very recent example, of less than three months ago, can be found in the Court’s Order

of 01.07.2015, in the case of Armed Activities on the Territory of the Congo (D.R. Congo versus
Uganda) wherein the Court took account of “the requirements of the sound administration of
justice” (para. 7) in order to resume the proceedings in the case as to reparations (para. 8). In my
Declaration appended to that Order, I have stressed the relevance of the application of the principle
of the sound administration of justice (la bonne administration de la justice) for the proper exercise
of the international judicial function (para. 6). Yet another illustration in the case-law of the ICJ is

provided by the incidence  as I perceive it  of the principle of the sound administration of
justice (la bonne administration de la justice) in the Court’s handling of joinder of proceedings in
two recent (joined) cases, to which I now briefly turn.

3. General Principles in the Joinder of Proceedings

32. The joinder of proceedings (regulated by Article 47 of the Rules of Court) has found
application by the Court in the recent cases of Certain Activities Carried out by Nicaragua in the
Border Area (Costa Rica versus Nicaragua) and Construction of a Road in Costa Rica along the
San Juan River (Nicaragua versus Costa Rica) (two Court’s Orders of 17.04.2013). In both Orders
of joinder, the ICJ stated that the joinders previously effected by it, and before it by its predecessor,

were “consonant” with “the pr14ciple of the sound administration of justice” and also with “the
need for judicial economy” . Likewise, in those two cases, the Court deemed it appropriate to join

14Paras. 18 and 12, respectively. - 11 -

their proceedings, “in conformity with the principle of the sound administration of justice and with
the need for judicial economy” . 15

33. In my Separate Opinions in each of the Orders in the two cases, I devoted special
attention to the incidence of the principle of the sound administration of justice in respect of
16
joinders of proceedings . I pointed out that, even if la bonne administration de la justice
flourished initially as a maxim, it later gave expression to a principle. In my perception, the proper
exercise of the international judicial function “requires the blend of logic and experience (la
sagesse et l’expérience), deeply-rooted in legal thinking (of comparative domestic law and of

international law)”, so as to endeavour “to secure the sound administration of justice”. And I
added:

“Positivists try in vain to subsume this latter under the interna corporis of the

international tribunal at issue, in their well-known incapacity to explain anything that
transcends the regulatory texts. (...)

The sound administration of justice enables the international tribunal at issue to

tackle questions of procedure even if these latter have ‘escaped’ the regulations of its
interna corporis. It is, in my perception, the idea of an objective justice that,
ultimately, guides the sound administration of justice (la bonne administration de la
justice), in the line of jusnaturalist thinking. The proper pursuit of justice is in

conformity with the general principles of law. With the reassuring evolution and
expansion of judicial settlement in recent decades, there has been, not surprisingly, an
increasing recourse to the maxim la bonne administration de la justice,  which gives
17
expression to a general principle of law, captured by human conscience ” (paras. 13
and 15).

34. Hence the relevance of the proper handling of international procedure, for the sake of the

realization of justice (para. 17). In this connection, already in the late thirties, Maurice Bourquin
deemed it fit to single out the relevance of the “qualité des procédures”. To him,

“Une bonne procédure facilite la solution des difficultés. Une mauvaise

procédure fait, en revanche, plus de mal que de bien. Mais ce n’est pas un mécanisme,
même admirablement agencé, qui pourrait régler à lui seul une pareille matière. Ce
qu’il faut ici, par-dessus tout, c’est un certain état d’esprit, (...) le calme de la raison;
18
c’est cette chose si simple et pourtant si rare qu’on appelle le bon sens” .

35. Common sense is indeed the least common of all senses, it cannot simply be assumed.

Hence the need to keep always in mind the principle of la bonne administration de la justice. It is
not the only principle of the kind. The maxim audiatur et altera pars (or audi alteram partem)
gave expression to the general principle of law providing for procedural equality between the
contending parties in the course of judicial proceedings . 19 Another principle of international

1Paras. 24 and 18.
16
Paras. 10-23 and 25-27.
1On human conscience  the universal juridical conscience  as the ultimate material source of international
law, cf. A.A. Cançado Trindade, International Law for Humankind..., op. cit supra n. (11), ch. VI, pp. 139-161.

1M. Bourquin, “Stabilité et mouvement dans l´ordre juridique international”, 64 Recueil des Cours de
l’Académie de Droit International de La Haye (1938) p. 472.
19
Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, London, Stevens,
1953, p. 291. - 12 -

procedural law, that of jura novit curia (going back to Roman law), acknowledges the freedom and
autonomy of the judge in searching for and determining the law applicable to a given dispute,
without being restrained by the arguments of the parties . 20

4. General Principles in Advisory Proceedings

36. The principle of the sound administration of justice (la bonne administration de la
justice) has been resorted to not only in the proceedings of contentious cases, but in the Court’s

advisory proceedings as well. May I turn briefly to these latter now. On successive occasions the
Court, by resorting to la bonne administration de la justice, has endeavoured to secure the
observance of the principle of procedural equality of the parties. Already in the mid-fifties, the ICJ
expressed its attention to general principles of international procedural law.

37. Thus, in its Advisory Opinion (of 23.10.1956) on the Judgments of the ILO
Administrative Tribunal upon Complaints Made against UNESCO, the ICJ, after having noted the
“absence of equality” (in its advisory proceedings) ensuing from the Statute of the Court itself,
pondered that “[t]he principle of equality of the parties follows from the requirements of good

administration of justice” (p. 86). The Court would better have stated, more precisely, that the
principle of equality of the parties orients or guides the requirements of good administration of
justice. In my understanding, principles (prima principia) stand higher than rules or requirements,
and orient them.

38. Two and a half decades later, the ICJ again stressed the relevance of “the principle of
equality of the parties” in its Advisory Opinion of 20.07.1982, concerning an Application for
Review of a Judgment of the U.N. Administrative Tribunal (paras. 29-32 and 79). In its most recent
Advisory Opinion (of 01.02.2012), on a Judgment of the ILO Administrative Tribunal upon a

Complaint Filed against IFAD, the ICJ insisted on “the right to equality in the proceedings”
(para. 30), on “the principle of equality before the Court” as “a central aspect of the good
administration of justice” (paras. 35 and 44), and on “the principle of equality in the proceedings
before the Court, required by its inherent judicial character and by the good administration of
justice” (para. 47) . In my Separate Opinion (paras. 28-51 and 82-118) appended to this recent

Advisory Opinion of the ICJ of 2012, I have dwelt in depth (paras. 20-56 and 82-118) upon the
imperative of securing the equality of parties in the international legal process.

5. General Assessment

39. As seen in the preceding paragraphs, fundamental principles, forming the substratum of
the legal order itself, are always present, at substantive and procedural levels. They orient the
interpretation and application of legal norms, and recourse to them is ineluctable in the realization
of justice. I have reviewed their incidence in distinct incidental proceedings of contentious cases

(of preliminary objections, provisional measures, counter-claims and intervention), in addition to
the joinder of proceedings, as well as in advisory proceedings (cf. supra).

2Cf. my Separate Opinions in the two Orders of joinder of the ICJ in the aforementioned cases of Certain
Activities and Construction of a Road, para. 19.

2It further insisted on “equality of access” to justice (paras. 37, 39, 43 and 48), on “the concept of equality before
courts and tribunals” (paras. 38 and 40), and on the guarantee of “equal access and equality of arms” (para. 39). - 13 -

40. The ICJ, explaining the reasons to decide the way it did, for example, in its two
aforementioned Orders (of 17.04.2013) of joinder of the proceedings in the cases concerning
Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica versus Nicaragua) and
Construction of a Road in Costa Rica along the San Juan River (Nicaragua versus Costa Rica),

pondered that its decision to join the proceedings would allow it “to address simultaneously the
totality of the various interrelated and contested issues raised by the Parties” (para. 23). In my
Separate Opinions appended to those two Orders, I deemed it fit to state:

“In my perception, the presence of the idea of justice, guiding the sound

administration of justice, is ineluctable. Not seldom the text of the Court’s interna
corporis does not suffice; in order to impart justice, in circumstances of this kind, an
international tribunal such as the ICJ is guided by the prima principia. To attempt to
offer a definition of the sound administration of justice that would encompass all
possible situations that could arise would be far too pretentious, and fruitless. An

endless diversity of situations may be faced by the ICJ, leading it  in its pursuit of
the realization of justice  to deem it fit to have recourse to the principle of the sound
administration of justice (la bonne administration de la justice); this general
principle, in sum, finds application in the most diverse circumstances. (...)

(...) The idea of justice guides the sound administration of justice (la bonne
administration de la justice), as manifested, e.g., in decisions aiming at securing the
procedural equality of the contending parties.

General principles of law have always marked presence in the pursuit of the

realization of justice. In my understanding, they comprise not only those principles
acknowledged in national legal systems, but likewise the general principles of
international law. They have been repeatedly reaffirmed, time and time again, and, 
even if regrettably neglected by segments of contemporary legal doctrine,  they retain

their full validity in our days. An international tribunal like the ICJ has consistently had
recourse to them in its jurisprudence constante. Despite the characteristic attitude of
legal positivism to attempt, in vain, to minimize their role, the truth remains that, without
principles, there is no legal system at all, at either national or international level.

General principles of law inform and conform the norms and rules of legal
systems. In my understanding, sedimented along the years, general principles of law
form the substratum of the national and international legal orders, they are indispensable
(forming the jus necessarium, going well beyond the mere jus voluntarium), and they
give expression to the idea of an objective justice (proper of jusnaturalist thinking), of

universal scope. Last but not least, it is the general principles of law that inspire the
interpretation and application of legal norms, and also the law making process
itself ”(paras. 20 and 25-27).

V. GENERAL PRINCIPLES OF INTERNATIONAL L AW , LATIN A MERICAN
NTERNATIONAL L EGAL DOCTRINE ,AND THE SIGNIFICANCE
OF THE PACT OF BOGOTÁ

41. In this connection, may I now turn to the Pact of Bogotá, Article XXXI of which

provides the jurisdictional basis for the Court’s present Judgment in the case concerning the
Obligation to Negotiate Access to the Pacific Ocean. May I briefly recall how the Pact of Bogotá

2A.A. Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium, op. cit. supra n. (11),
ch. III, pp. 85-121, esp. pp. 90-92. - 14 -

was envisaged in the epoch it came to see the light of the day. As soon as the Pact of Bogotá was

adopted in 1948, it was reckoned that, among the solutions in the domain of peaceful settlement of
international disputes, stress needed to be laid by the Pact in particular upon the importance of
judicial settlement. Article XXXI of the Pact, in providing for the compulsory jurisdiction of the

ICJ for the settlement of “all disputes of a juridical nature”, was regarded as being in line with
Latin American doctrine as to the primacy of law and justice over recourse to force . Already 23

in 1948, it was pointed out that

“La finalidad evidente de todo el sistema creado en [el Pacto de] Bogotá es la de
asegurar que ningún conflicto ni ninguna controversia susceptible de poner en peligro

la paz de América, quede sin solución pacífica. Para ésto, el Pacto generalizó, en un
compromiso colectivo, la jurisdicción obligatoria de la Corte Internacional de
Justicia” .4

42. This brings us closer to the object and purpose of the Pact itself, taken as a whole. In

effect, the 1948 Pact of Bogotá was promptly regarded as a work of codification of peaceful
settlement in international law, moving beyond the arbitral solution (deeply-rooted in
Latin American experience) into judicial settlement itself, without the need of a special agreement
25
to that effect . Without imposing any specific means of peaceful settlement, the Pact of Bogotá
took a step forward in rendering obligatory peaceful settlement itself, and enhanced recourse to the
ICJ .6

43. The adoption of the Pact of Bogotá, with this advance in dispute-settlement, was the

culminating point of the evolution, starting in the XIXth century, of the commitment of
Latin American countries with peaceful settlement of international disputes, moving towards
compulsory jurisdiction of the Hague Court. This feature of Latin American international legal

thinking arose out of the concertation of the countries of the re27on in two series of Conferences,
namely: a) the Latin American Conferences (1826-1889) ; and b) the Pan American Conferences
(1889-1948) , leading to the adoption, in 1948, of the OAS Charter and the Pact of Bogotá. The

23
Cf. R. Cordova, “El Tratado Americano de Soluciones Pacíficas  Pacto de Bogotá”, 1 Anuario Jurídico
Interamericano  Pan American Union (1948) pp. 11-15 and 17.
24
Ibid., p. 11  “The clear aim of the whole system created in [the Pact of] Bogotá is that of securing that no conflict
nor any controversy susceptible of putting in risk the peace of America, is to remain without peaceful settlement. To that end,
the Pact generalized, in a collective engagement, the compulsory jurisdiction of the International Court of Justice”. [My own
translation].
25
J.M. Yepes, “El Tratado Americano de Soluciones Pacíficas (Pacto de Bogotá)”, 9 Universitas  Pontificia
Universidad Católica Javeniana (1955) pp. 23-25 and 40.
26
Ibid., pp. 34 and 36.
27Starting with the Conference (Congreso Anfictiónico) of Panama of 1826, followed by the Conferences (with
small groups of States) of Lima (1847-1848), Santiago de Chile (1856), Lima (1864-1865 and 1877-1880) and
Montevideo (1888-1889).

28Starting with the Conference of Washington (1889), followed by the International Conferences of American
States of Mexico (1901-1902), Rio de Janeiro (1906), Buenos Aires (1910), Santiago de Chile (1923), Havana (1928),
Montevideo (1933), Lima (1938), and Bogotá (1948, wherein the OAS Charter and the Pact of Bogotá were adopted,
initiating the era of the OAS). - 15 -

gradual outcome of this concertation echoed at the II Hague Peace Conference (1907), and in the
drafting process of the Statute of the PCIJ (1920) and the ICJ (1945) . 29

44. The adoption of the Pact of Bogotá in 1948 was the culmination of the sustained and
enduring posture of Latin American States in support of peaceful settlement of disputes, and of the

compulsory jurisdiction of the Hague Court over disputes of a “juridical nature”. In effect, three
years after the adoption of the U.N. Charter in 1945, Latin American States did in Bogotá in 1948
what they had announced in San Francisco as a goal: the recourse, under Article XXXI of the Pact
of Bogotá, to the compulsory jurisdiction of the ICJ, for the settlement of disputes of a “juridical

nature”, irrespective of the position that States Parties to the Pact might have taken under the
optional clause (Article 36 (2)) of the ICJ Statute. That was a significant step ahead.

45. As it was adopted, the Pact of Bogotá was promptly regarded by its contemporaries as a

landmark in the development of this chapter of international law:

“Hasta la reunión de la IX Conferencia [Internacional Americana (Bogotá,
1948)] no existía en América lo que podríamos llamar el estatuto de la pax americana.

Había habido sólo una multitud de convenciones que reglamentaban
fragmentariamente los distintos medios de solución pacífica. (...) De ahí la necesidad
(...) de elaborar un instrumento único que (...) coordinase el conjunto para que
constituyesen un cuerpo armónico, tanto en la parte substantiva como en la

procedimental. Puede decirse que el Pacto de Bogotá ha alcanzado ese objetivo. Un
sólo tratado, bien estructurado, como éste, que prevea todos los casos posibles de
conflictos entre los Estados americanos y que estipule de una manera ineludible la
solución pacífica obligatoria de todas las controversias, implica sin duda un progreso

real del Derecho internacional americano. (...)

(...) Nos referimos especialmente (...) a la disposición que confiere, ipso facto y
sin necesidad de ningún convenio especial, jurisdicción obligatoria a la Corte

Internacional de Justi30a para todas las diferencias de carácter jurídico entre los
Estados signatarios” .

2For an account and examination of those historical antecedents, cf. F.V. García-Amador (coord.), Sistema
Interamericano a través de Tratados, Convenciones y Otros Documentos, vol. I: Asuntos Jurídico-Políticos, Washington
D.C., OAS General Secretariat, 1981, pp. 1-67; A.A. Cançado Trindade, “The Presence and Participation of Latin America
at the II Hague Peace Conference of 1907”, in Actualité de la Conférence de La Haye de 1907, II Conférence de la Paix
(Colloque de 2007) (ed. Y. Daudet), The Hague/Leiden, The Hague Academy of International Law/Nijhoff, 2008, pp. 51-84;
H. Gros Espiell, “La doctrine du Droit international en Amérique Latine avant la Première Conférence Panaméricaine
(Washington, 1889)”, 3 Journal of the History of International Law/Revue d´histoire du droit international (2001)
pp. 1-17.

3Ibid., pp. 24-25  “Until the meeting of the IX [International American ] Conference [(Bogotá, 1948)] there
did not exist in America what we could call the statute of the pax americana. There was only a multitude of conventions
which regulated in a fragmented way the distinct means of peaceful settlement (...) Hence the necessity (...) to elaborate
one sole instrument which (...) would coordinate the whole matter so as to render it a harmonious corpus, as substantive
as well as procedural level. One may say that the Pact of Bogotá has achieved that aim. One sole treaty, well structured,
like this one, which foresees all possible cases of conflicts among the American States and which stipulates in an
ineluctable way the compulsory peaceful settlement of all controversies, implies undoubtedly a real progress of the
American International Law. (...)

(...) We refer especially (...) to the provision which confers, ipso facto and without the
need of any special agreement, compulsory jurisdiction to the International Court of
Justice for alldisputes of a juridical nature among the signatory States” [My own
translation]. - 16 -

46. There was, in the Pact of Bogotá, a combination of the obligation to submit disputes of a

juridical nature (i.e., those based on claims of legal rights) to judicial or arbitral settlement,  with
the free choice of means of peaceful settlement as to other types of controversies; in this way, the
1948 Pact innovated in providing for peaceful settlement of all disputes . 31 In adopting the

1948 Pact of Bogotá, Latin American States made a point of expressing their “spirit of confidence”,
added to their “feeling of common interest”, in judicial settlement (more perfected than arbitral
settlement), in particular the compulsory jurisdiction of the ICJ . 32 Hence the relevance of

Article XXXI of the Pact, also in relation to Article VI.

47. Moreover, the 1948 Charter of the Organization of American States (OAS) relied upon
the adoption of a “special treaty” for the peaceful settlement of international disputes among States
of the region, and the Pact of Bogotá was intended to be that “special treaty”. Yet, despite the
33
achievement, in historical perspective , of the adoption of the 1948 American Treaty on Pacific
Settlement (Pact of Bogotá), and the fact that it had been elaborated in a conceptual framework
which best reflected Latin American international law doctrine,  as time went on, not so many

States became Parties to it. For those which did not ratify it, earlier treaties continue to operate,
providing a diversity of bases for the peaceful settlement of international disputes, which the Pact
of Bogotá sought to overcome and systematize.

48. This may explain why, already in the mid-fifties, the possibility of its future revision was
already admitted . The 1948 Pact of Bogotá, as just seen, has already a long history, during which

the question of its reform was more than once envisaged. From the early seventies onwards, the
idea of its reassessment or revision was in effect contemplated, though without effects. Thus, in an
Opinion of 16.09.1971, the OAS Inter-American Juridical Committee, having examined the matter,

was of the view that its key provisions (such as Articles XXXI and VI) could not be modified or
suppressed . The Committee concluded that the Pact of Bogotá rightly regulates all procedures
(including compulsory judicial or arbitral ones) of peaceful settlement, and should not be opened to
36 37
modifications ; it finally urged OAS member States to ratify the Pact of Bogotá .

49. In the mid-eighties the idea of its revision was again brought to the fore, — in the 1984
OAS General Assembly, held in Brasília, — in the wider context of the OAS reforms as a whole
(1985 Protocol of Cartagena de Indias); concern was expressed in the Committee with the

relatively small number of ratifications (13 at that time) and the fact that it had been rarely resorted

31
W. Sanders, “The Organization of American States  Summary of the Conclusions of the Ninth International
Conference of American States (Bogotá, Colombia, March 30-May 2, 1948)”, 442 International Conciliation (June 1948)
p. 400.
32
Ch.G. Fenwick, “The Pact of Bogotá and Other Juridical Decisions of the Ninth Conference”, 82 Bulletin of the
Pan American Union (August 1948) n. 8, pp. 424-425.
33Cf., for a general study, J.M. Yepes, Del Congreso de Panamá a la Conferencia de Caracas (1826-1954),
Caracas, [Ed. Concurso M.R.E. de Venezuela], 1955, pp. 29-208.

34Cf. Ch.G. Fenwick, “The Revision of the Pact of Bogotá”, 48 American Journal of International Law (1954)
pp. 123-126. It was pointed out, inter alia, that, e.g., Bolivia and Ecuador had both made reservations to Article VI of the
Pact (excluding its application to matters already settled by treaty), bearing in mind “treaties which they believe were
entered into under compulsion”; ibid., p. 124.

35Cf. Comité Jurídico Interamericano, “Dictamen”, in: 10 Recomendaciones e Informes (1967-1973) pp. 402-403.
36
Ibid., pp. 402-403.
37Ibid., p. 406 — Subsequently, in the mid-seventies, the OAS Permanent Council took note that no
recommendations had been presented of reforms of the Pact of Bogotá; cf. OEA/Consejo Permanente, doc.
OEA/Ser.G-CP/CG-628/75, of 21.11.1975, p. XI. - 17 -

38
to in practice until then . The OAS Inter-American Juridical Committee issued a new Opinion
on 29.08.1985, and, once again, the idea of reforming the Pact of Bogotá did not prosper. The
Committee pondered, in its Opinion of 1985, that the Pact, — the special treaty foreseen under

Article 26 of the OAS Charter, — amounted to a codification of the existing treaties on peaceful
settlement of disputes in the inter-American system . 39

50. The Committee decided, in the same Opinion, that Article XXXI of the Pact was to

remain unaltered, as it constituted one of its key features, in setting forth the recourse to the ICJ, by
means of the recognition of its jurisdiction as “compulsory ipso facto, without the necessity of any
special agreement”, so long as the treaty remains in force for the settlement of “disputes of a
40
juridical nature” specified in the Pact itself . The Committee thus dismissed any amendments that
purported to put an end to the automatism of recourse to the compulsory jurisdiction of the ICJ
41
under the Pact of Bogotá (Article XXXI) . The Committee’s Opinio42of 1985 was followed by a
project presented by Colombia to the OAS in 1986-1987 , which sought an adjustment of the Pact
with the provisions of the OAS Charter as amended by the Protocol of Cartagena de Indias . 43

51. In this respect, in 1987, the OAS Committee on Juridical and Political Affairs (subsidiary

organ of the OAS Permanent Council) found the existence of differences of opinion within the
OAS as to an eventual revision of the Pact of Bogotá. In the lack of any consensus to amend the
Pact, this latter, accordingly, subsisted as it stood, and as it stands today. The OAS General
44
Secretariat, for its part, likewise studied the matter in 1985-1987 , and concluded that the Pact of
Bogotá is the “special treaty” adopted in compliance with Article 26 of the OAS Charter, and could
45
only be changed if all States Parties to it so decided , — which was not the case. The Pact
remained unchanged.

52. Throughout these exercises, from 1971 to the late eighties, although an argument was
46
made in favour of a reform of the Pact of Bogotá , this latter remained unchanged, and the main
trend of expert writing leaned in support of the preservation of its provisions, stressing, in
particular, the historical relevance of Article XXXI of the Pact, for ascribing the utmost importance

to judicial settlement of “disputes of a juridical nature”, by means of automatic acceptance of the

38
Cf. Comité Jurídico Interamericano, 16 Informes y Recomendaciones (1984) p. 59; Comité Jurídico
Interamericano, 17 Informes y Recomendaciones (1985) pp. 62-63.
39
Listed in Article LVIII of the Pact itself; cf. “Dictamen”, in: Comité Jurídico Interamericano, 17 Informes y
Recomendaciones (1985), pp. 65 and 95.
40
In ibid., pp. 66, 74-75 and 81.
41Cf. ibid., p. 75.

42Cf. OAS, doc. AG/doc.2030/86, pp. 1-19; OAS/Permanent Council, doc. OEA/Ser.G-CP/CAJP-662/87,
of 03.05.1987, pp. 1-5; OAS/Permanent Council, doc. OEA/Ser.G-CP/CAJP-666/87, of 11.05.1987, pp. 1-6.
43
Cf. doc. OEA/Ser.G-CP/CAJP-666/87, cit. supra n. (42), of 11.05.1987, p. 3.
44
Cf. OEA/Consejo Permanente, doc. OEA/Ser.G-CP/doc.1560/85-part II, of 09.04.1985, pp. 13-23.
45Cf. OEA/Consejo Permanente, doc. OEA/Ser.G-CP/CAJP-676/87, of 02.06.1987, pp. 13-15, and cf. pp. 1-12.

46Cf. G. Leoro F., “La Reforma del Tratado Americano de Soluciones Pacíficas o Pacto de Bogotá, in: OEA,
Anuario Jurídico Interamericano (1981) pp. 43 and 77-79. - 18 -

compulsory jurisdiction of the ICJ, thus overriding obligations ensuing from optional clause
47
declarations .

53. This was a significant contribution of Latin American international legal thinking to the

matter, enhancing compulsory judicial settlement. Article XXXI of the Pact of Bogotá had the
legal effect of transforming the “loose relationship” ensuing from optional clause declarations
under Article 36 (2) of the ICJ Statute into a “treaty relationship”, endowed with

“the binding force and the stability which is characteristic of a conventional link, and
not of the regime of the optional clause. In this way, the Latin American States which
have accepted the Pact of Bogotá have established, in their mutual relations, and in
view of the close historical and cultural ties between them, the compulsory jurisdiction

of the Court on much stronger terms than those resulti48 from the network of
declarations made under Article 36 (2) of the Statute” .

VI. THE PACT OF B OGOTÁ AND JUDICIAL SETTLEMENT BY THE ICJ

54. The Pact of Bogotá served as basis of the ICJ’s jurisdiction in the case of the

1906 Arbitral Award by the King of Spain (Honduras versus Nicaragua, 1960), — but ever since,
until the mid-eighties, the Pact laid dormant, in so far as the ICJ jurisdiction is concerned.
Furthermore, the Pact of Bogotá, despite its few ratifications (only [fourteen]) , was to be
considered in the context of regional arrangements for conflict resolution in Latin America, given

the importance ascribe50by Latin American States to the general principle of peaceful settlement of
international disputes .

55. After the aforementioned dismissed initiatives as to its eventual amendment (supra),
there occurred, from the late eighties onwards, a gradual revival of the Pact of Bogotá, as basis of
the ICJ’s jurisdiction, in disputes — like the one in the present case — opposing Latin American
States. Reference can be made to the Court’s Judgments in the cases, e.g., of Border and

Transborder Armed Actions (Nicaragua versus Honduras, 1988), Territorial and Maritime Dispute
between Nicaragua and Honduras in the Caribbean Sea (2007), Dispute regarding Navigational
and Related Rights (Costa Rica versus Nicaragua, 2009), Pulp Mills on the River Uruguay

(Argentina versus Uruguay, 2010), Territorial and Maritime Dispute (Nicaragua versus Colombia,
2013), Maritime Dispute (Peru versus Chile, 2014). To these, one may add five other cases,

4Cf. A. Herrarte, “Solución Pacífica de las Controversias en el Sistema Interamericano”, in: OEA, VI Curso de
Derecho Internacional Organizado por el Comité Jurídico Interamericano (1979) pp. 220 and 225; E. Valencia-Ospina,
“The Role of the International Court of Justice in the Pact of Bogotá”, in Liber Amicorum In Memoriam of
Judge J.M. Ruda (eds. C.A. Armas Barea, J. Barberis et alii), The Hague, Kluwer, 2000, pp. 296-297, 301 and 305-306;
A. Bazán Jiménez, “Tratado Americano de Soluciones Pacíficas — Pacto de Bogotá”, 57 Revista Peruana de Derecho
Internacional (2007) pp. 21, 36 and 47-48.

4E. Jiménez de Aréchaga, “The Compulsory Jurisdiction of the International Court of Justice under the Pact of
Bogotá and the Optional Clause”, in International Law at a Time of Perplexity — Essays in Honour of S. Rosenne (eds.
Y. Dinstein and M. Tabory), Dordrecht, Nijhoff, 1989, pp. 356-357.
49
Currently (September 2015): Bolivia, Brazil, Chile, Costa Rica, Dominican Republic, Ecuador, Haiti, Honduras,
Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay. (Denunciations: Colombia, El Salvador).
5Cf. A.A. Cançado Trindade, “Regional Arrangements and Conflict Resolution in Latin America”, in Conflict

Resolution: New Approaches and Methods, Paris, UNESCO, 2000, pp. 141-162; A.A. Cançado Trindade, “Mécanismes de
règlement pacifique des différends en Amérique Centrale: de Contadora à Esquipulas-II”, 33 Annuaire français de Droit
international (1987) pp. 798-822. - 19 -

currently pending before the Court . Yet, despite this recent revival of the Pact of Bogotá, I
suppose no one would dare to predict, or to hazard a guess, as to further developments in its

application in the future. After all, despite advances made, experience shows, within a larger
context, that the parcours towards compulsory jurisdiction is a particularly long one, there still
remains a long path to follow ...2

56. It should not pass unnoticed that, significantly, the legacy of Latin American doctrine
(supra) as to the enhancement of judicial settlement of international disputes was well captured and

sustained by the ICJ, e.g., in its Judgment of 20.12.1988 in the case concerning Border and
Transborder Armed Actions (Nicaragua versus Honduras). The ICJ held therein that Article XXXI
of the Pact of Bogotá enshrines an engagement which can in no way be amended by a subsequent
unilateral declaration. In the words of the Court itself, whenever such declaration is made, “it has

no effect on the commitment” resulting from Article XXXI of the Pact (para. 36). The States
Parties to the Pact have not linked together Article XXXI and such declarations (para. 40); that
commitment “is independent of such declarations” (para. 41).

57. In sum, the Court’s jurisdiction is grounded on the provision of a treaty (the Pact of
Bogotá), and not on a unilateral declaration, as under the optional clause of Article 36 (2) of the ICJ
Statute. Article XXXI was intended to enhance the jurisdiction of the Court, ratione materiae and

ratione temporis (not admitting subsequent restrictions, while the Pact remains in force), as well as
ratione personae (concerning all States Parties to the Pact). In my own perception, the traditional
voluntarist conception (a derivative of anachronical legal positivism) yielded to the reassuring

conception of the jus necessarium, to the benefit of the realization of international justice.

58. It was made clear by the ICJ, already in the case of Border and Transborder Armed

Actions, that Article XXXI amounts to a compromissory clause which sets forth the engagement,
by the States Parties to the Pact, as to the conventional basis of the jurisdiction of the ICJ, to settle
all “disputes of a juridical nature”, independently of the optional clause (Article 36 (2) of the ICJ
Statute). The Court stressed that it was “quite clear from the Pact that the purpose of the American

States in drafting it was to reinforce their mutual commitments with regard to the judicial
settlement. This is also confirmed by the travaux préparatoires” of the Pact, during which the
judicial procedure before the ICJ was regarded as “the principal procedure for the peaceful
settlement of conflicts between the American States” (para. 46). Furthermore, expert writing has

likewise acknowledged that Article XXXI of the Pact of Bogotá enhanced the procedure of judicial
settlement by the ICJ .53

51
Such as the (merged) cases of Certain Activities Carried out by Nicaragua in the Border Area
(Costa Rica versus Nicaragua), and of Construction of a Road in Costa Rica along the San Juan River (Nicaragua versus
Costa Rica), — as well as the cases of Maritime Delimitation in the Caribbean Sea and the Pacific Ocean
(Costa Rica versus Nicaragua), Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua versus Colombia), Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia
beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua versus Colombia).
52
For a recent study, cf. A.A. Cançado Trindade, “Towards Compulsory Jurisdiction: Contemporary
International Tribunals and Developments in the International Rule of Law — Part I”, in XXXVII Curso de Derecho
Internacional Organizado por el Comité Jurídico Interamericano — 2010, Washington D.C., OAS General Secretariat,
2011, pp. 233-259; A.A. Cançado Trindade, “Towards Compulsory Jurisdiction: Contemporary International Tribunals
and Developments in the International Rule of Law — Part II”, in XXXVIII Curso de Derecho Internacional Organizado
por el Comité Jurídico Interamericano — 2011, Washington D.C., OAS General Secretariat, 2012, pp. 285-366.
5Cf., e.g., R. Casado Raigón, “La Sentencia de la CIJ de 20 de Diciembre de 1988 (Competencia y
Admisibilidad de la Demanda) en el Asunto Relativo a Acciones Armadas Fronterizas y Transfronterizas (Nicarágua c.

Honduras)”, 41 Revista Española de Derecho Internacional (1989) pp. 402-405 and 407; E. Orihuela Calatayud,
“El Pacto de Bogotá y la Corte Internacional de Justicia”, 42 Revista Española de Derecho Internacional (1990)
pp. 430-431, 433, 436 and 438. - 20 -

VII. CONCLUDING OBSERVATIONS : THE THIRD W AY (TROISIÈME V OIE/TERCERA V Í)
UNDER ARTICLE 79 (9)OF THE RULES OF C OURT — O BJECTION NOT OF
AN EXCLUSIVELY PRELIMINARY C HARACTER

59. May I come to the remaining aspect that I purport to address in the present Separate

Opinion. In its Judgment of today, 24.09.2015, in the case concerning the Obligation to Negotiate
Access to the Pacific Ocean, the Court — as I have already pointed out (cf. paras. 2-3, supra) —
has very briefly referred to Article XXXI of the Pact of Bogotá and to Article 79 (9) of the Rules of
Court, in comparison with the attention it devoted to Article VI of the Pact. May it here be recalled
that, in the case of Nicaragua versus United States (merits, Judgment of 27.06.1986), the ICJ

elaborated on the scope of Article 79 of the Rules of Court, to the effect that the provision

“presents one clear advantage: that it qualifies certain objections as preliminary,
making it quite clear that when they are exclusively of that character they will have to
be decided upon immediately, but if they are not, especially when the character of the

objections is not exclusively preliminary because they contain both preliminary
aspects and other aspects relating to the merits, they will have to be dealt with at the
stage of the merits. This approach also tends to discourage the unnecessary
prolongation of proceedings at the jurisdictional stage” (para. 41).

60. This point was later reiterated by the ICJ in the Lockerbie cases (preliminary objections,
Libya versus United Kingdom and United States, Judgments of 27.02.1998, paras. 49 and 48,
respectively).Moreover, in the aforementioned case of Territorial and Maritime Dispute
(Nicaragua versus Colombia, preliminary objections, Judgment of 13.12.2007), it was also clarified
by the Court that, in principle, a party raising a preliminary objection (to jurisdiction or

admissibility) is entitled to have that objection answered at the preliminary stage of the proceedings
unless the Court “does not have before it all facts necessary” to decide the question raised, or else
the Court, in answering that objection, would prejudge the dispute, or some elements thereof, on
the merits (para. 51).

61. Article 79 (9) of the Rules of Court is not limited to the ICJ deciding in one way or
another (upholding or rejecting) the objection raised before it in the course of the proceedings.
Article 79 (9) in effect contemplates a third way (troisième voie/tercera vía), namely, in its terms:

“declare that the objection does not possess, in the circumstances of the case, an
exclusively preliminary character. If the Court rejects the objection or declares that it
does not possess an exclusively preliminary character, it shall fix time-limits for the
further proceedings”.

62. This being so, the ICJ, moving into the merits, asserts its jurisdiction; this happens
because the character of the objection contains aspects relating to the merits, and thus requires an
examination of the merits. This is so in the present case concerning the Obligation to Negotiate
Access to the Pacific Ocean, as to the dispute arisen between Bolivia and Chile, as to whether their
practice subsequent to the 1904 Peace Treaty substantiates an obligation to negotiate on the part of

the respondent State. Such negotiations have given rise to a dispute, not settled by the 1904 Peace
Treaty. Chile’s objection cannot be properly decided without deciding the merits of the dispute, as
it does not have an exclusively preliminary character, appearing rather as a defence as to the merits
of Bolivia’s claim. - 21 -

63. There have been negotiations, extending well after the adoption of the 1948 Pact of
Bogotá, in which both contending parties were actively engaged; although in the present Judgment
there is no express reference to any of such negotiations specifically, the ICJ takes note of
arguments made in the course of the proceedings of the cas d’espèce to the effect that negotiations
took place subsequently to the 1904 Peace Treaty (para. 19) on unsettled issues, well beyond the
date of the adoption of the Pact of Bogotá (on 30.04.1948), until 2012. The present case relating to

the Obligation to Negotiate Access to the Pacific Ocean concerns such process of negotiations, and
the issue whether there is a duty to pursue them further.

64. To assert the duty to negotiate is not the same as to assert the duty to negotiate an
agreement, or a given result. The former does not imply the latter. This is a matter for

consideration at the merits stage. The Court is here concerned only with the former, the claimed
duty to negotiate. The objection raised by the respondent State does not appear as one of an
exclusively preliminary character. The substance of it can only be properly addressed in the course
of the consideration of the merits of the cas d’espèce, not as a “preliminary objection”. The Court
is thus right in proceeding — for this particular reason — to fix time-limits for further proceedings
(Article 79 (9) in fine), moving into the merits phase. The contending parties’ post-1904 exchanges

and declarations appear to substantiate an obligation to negotiate, beyond and irrespective of the
1904 Peace Treaty. The Court has thus to move into the merits, in order to examine, and
pronounce upon, the punctum pruriens of the cas d’espèce.

65. May it here be further pointed out that, in the case of the Territorial and Maritime
Dispute (Nicaragua versus Colombia, preliminary objections, Judgment of 13.12.2007), the ICJ,

after recalling the rationale of Article VI of the Pact of Bogotá, found that the dispute had not been
settled by the treaty at issue (of 1938, and Protocol of 1930), nor by a judicial decision, and thus
found it had jurisdiction under Article XXXI of the Pact (paras. 77 and 120). The ICJ deemed it fit
further to recall that Article 79 (9) of its Rules of Court establishes three ways in which it may
dispose of a preliminary objection: either to uphold or to reject it, or else to declare that it does not

possess an exclusively preliminary character (para. 48).

66. This would have been, in my perception, the proper and more prudent way for the Court
to dispose of the preliminary objection raised by Chile in the present case opposing it to Bolivia. In
any case, the ICJ would move into the merits. The first and third ways foreseen by Article 79 (9)
of the Rules of Court lead, on the basis of distinct reasonings, to a consideration of the merits of the

case. In the previous case of the Territorial and Maritime Dispute, opposing Nicaragua to
Colombia (supra), the ICJ further stressed that the commitment under Article XXXI of the Pact of
Bogotá is an “autonomous one” (independent from an optional clause declaration), which enhances
the access to the Court (paras. 134-135) and the judicial settlement of “disputes of a juridical
nature” under the Pact of Bogotá. Article XXXI cannot be unduly limited by optional clause
declarations, nor by preliminary objections which do not possess an exclusively preliminary

character.

67. May I conclude that the objection raised by Chile appears as a defence to Bolivia’s claim
as to the merits, inextricably interwoven with this latter. And the Court, anyway, does not count on
all the necessary information to render a decision on it as a “preliminary” issue. It is, in my view,

more in line with the good administration of justice (la bonne administration de la justice) that the
Court should keep the issue to be resolved at the merits stage, when the contending parties will
have had the opportunity to plead their case in full. This would entail no delays at all for the

5And cf. paras. 49-50. - 22 -

forthcoming proceedings as to the merits. Last but not least, Article VI of the Pact of Bogotá does

not exclude the Court’s jurisdiction in respect of disputes arisen after 1948: to hold otherwise
would deprive the Pact of its effet utile. The Pact of Bogotá, in line with the mainstream of Latin
American international legal doctrine, ascribes great importance to the judicial settlement of
disputes, — its main or central achievement, — on the basis of its Article XXXI, a milestone in the
conceptual development of this domain of international law.

(Signed) Antônio Augusto C ANÇADO T RINDADE .

___________