INTERNATIONAL COURT OF JUSTICE
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Website: www.icj-cij.org
2015/2 Summary
24 September 2015
Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile)
Summary of the Judgment of 24 September 2015
I. BACKGROUND (paras. 15-17)
The Court begins by recalling the historical background to the case. It explains that Chile
and Bolivia obtained their independence from Spai n in 1818 and 1825 respectively. At the time,
Bolivia had a coastline along the Pacific Ocean , measuring several hundred kilometres. On
10August1866, the two States signed a Treaty of Te rritorial Limits, which established a “line of
demarcation of boundaries” separating their nei ghbouring coastal territories. This line was
confirmed as the boundary line in the Treaty of Limits between Bolivia and Chile, signed on
6 August 1874. In 1879, Chile declared war on Peru and Bolivia, launching what became known
as the War of the Pacific, in the course of which it occupied Bolivia’s coastal territories. Hostilities
between Bolivia and Chile came to an end with the Truce Pact, signed in 1884 in Valparaíso.
Under the terms of the Pact, Chile, inter alia, to continue to govern the coastal region. As a
result of these events, Bolivia lost control over its Pacific coast. In 1895, a Treaty on the Transfer
of Territory was signed between Bolivia and Chile , but never entered into force. It included
provisions for Bolivia to regain access to thesea, subject to Chile acquiring sovereignty over
certain territories. On 20October1904, the Parties signed the Treaty of Peace and Friendship
(hereinafter the “1904Peace Treaty”), which offici ally ended the War of the Pacific as between
Bolivia and Chile. Under that Treaty, which entered into force on 10March1905, the entire
Bolivian coastal territory became Chilean and Bo livia was granted a right of commercial transit
through Chilean ports. The Court notes that, sinc e the conclusion of the 1904Peace Treaty, both
States have made a number of declarations and several diplomatic exchanges have taken place
between them regarding the situation of Bolivia vis-à-vis the Pacific Ocean.
II. ENERAL OVERVIEW OF THE POSITIONS OF
THE PARTIES (paras. 18-24)
In its Application instituting proceedings and in its Memorial, Bolivia requests the Court to
adjudge and declare that
“(a) Chile has the obligation to negotiate wi th Bolivia in order to reach an agreement
granting Bolivia a fully sovereign access to the Pacific Ocean;
(b) Chile has breached the said obligation; - 2 -
(c) Chile must perform the said obligation in good faith, promptly, formally, within a
reasonable time and effectively, to gran t Bolivia a fully sovereign access to the
Pacific Ocean.”
In order to substantiate the existence of th e alleged obligation to negotiate and the breach
thereof, Bolivia relies on “agreements, diplomatic pr actice and a series of declarations attributable
to [Chile’s] highest-level represen tatives”. According to Bolivia most of these events took place
between the conclusion of the 1904 Peace Treaty and 2012.
In its Application, Bolivia seeks to found th e jurisdiction of the Court on ArticleXXXI of
the Pact of Bogotá, which reads as follows:
“In conformity with Article36, paragra ph2, of the Statute of the International
Court of Justice, the High Contracting Par ties 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 agre ement 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 est ablished, would constitu te the breach of an
international obligation;
(d) the nature or extent of the reparation to be made for the breach of an international
obligation.”
Both Bolivia and Chile are parties to th e Pact of Bogotá, which was adopted on
30 April 1948.
In its preliminary objection, Chile claims that the Court lacks jurisdiction under
Article XXXI of the Pact of Bogotá to decide th e dispute submitted by Bolivia. Citing Article VI
of the Pact, it maintains that the matters at issue in the present case, namely territorial sovereignty
and the character of Bolivia’s access to the Paci fic Ocean, were settled by arrangement in the
1904 Peace Treaty and that they remain governed by that Treaty, which was in force on the date of
the conclusion of the Pact. In effect, ArticleVI provides that “[t]he procedures [laid down in the
Pact of Bogotá]... may not be applied to ma tters already settled by arrangement between the
parties, or by arbitral award or by decision of an international court, or which are governed by
agreements or treaties in force on the date of the conclusion of the present Treaty”.
Bolivia responds that Chile’s preliminar y objection is “manifestly unfounded”, as it
“misconstrues the subject-matter of the dispute”. Bolivia maintains that the subject-matter of the
dispute concerns the existence and breach of an ob ligation on the part of Chile to negotiate in good
faith Bolivia’s sovereign access to the Pacific O cean. It states that this obligation exists
independently of the 1904 Peace Treaty. Accordingly, Bolivia asserts that the matters in dispute in
the present case are not matters settled or governed by the 1904 Peace Treaty , within the meaning
of Article VI of the Pact of Bogotá, and that the Court has jurisdiction under Article XXXI thereof.
III. SUBJECT MATTER OF THE DISPUTE (paras. 25-36)
The Court observes that Article38, paragraph 2, of the Rules of Court provides that an
application shall specify the facts and grounds on which the claim is based. In support of its
contention that an obligation exists to negotiate s overeign access to the sea, Bolivia refers in its
Application to “agreements, diplomatic practice and series of declarations attributable to [Chile’s] - 3 -
highest-level representatives”. It further contends that Chile contrary to the position that it had
itself adopted later rejected and denied the existence of the alleged obligation to negotiate in
2011 and 2012, and that it has breached this obliga tion. On its face, therefore, the Application
presents a dispute about the existence of an obliga tion to negotiate sovereign access to the sea, and
the alleged breach thereof.
According to Chile, however, the true subj ect-matter of Bolivia’s claim is territorial
sovereignty and the character of Bolivia’s access to the Pacific Ocean.
The Court considers that, while it may be assumed that sovereign access to the Pacific Ocean
is, in the end, Bolivia’s goal, a distinction musbe drawn between that goal and the related but
distinct dispute presented by the Application, name ly, whether Chile has an obligation to negotiate
Bolivia’s sovereign access to the sea and, if such an obligation exists, whether Chile has breached
it. In its Application, Bolivia does not ask the C ourt to adjudge and declare that it has a right to
such access.
In light of the foregoing, the Court concludes that the subject-matter of the dispute is
whether Chile is obligated to negotiate in good faith Bolivia’s sovereign access to the Pacific
Ocean and, if so, whether Chile has breached that obligation.
IV. W HETHER THE MATTERS IN DISPUTE BEFORE THE C OURT FALL UNDER
ARTICLE VI OF THE PACT OF B OGOTÁ (paras. 37-53)
The Court recalls that, pursuant to ArticleVI of the Pact of Bogotá, if it were to find that,
given the subject-matter of the dispute as it has ientified it, the matters in dispute between the
Parties are matters “already settled by arrangeme nt between the parties” or “governed by
agreements or treaties in force” at the date of signature of the Pact, namely 30 April 1948, it would
lack the requisite jurisdiction to decide the cae on the merits. Consequently, the Court must
determine whether the matters in dispute are ma tters “settled” or “governed” by the 1904Peace
Treaty.
As the Court has already established, the subj ect-matter of the dispute is whether Chile is
obligated to negotiate in good faith Bolivia’s sovere ign access to the Pacific Ocean, and, if such an
obligation exists, whether Chile has breached it. However, the Court notes that the relevant
provisions of the 1904 Peace Treaty do not expressl y or impliedly address the question of Chile’s
alleged obligation to negotiate Bolivia’s sovereign access to the Pacific Ocean. The Court
accordingly concludes that the matters in disput e are not matters “already settled by arrangement
between the parties, or by arbitral award or by d ecision of an international court” or “governed by
agreement or treaties in force on the date of c onclusion of the [Pact of Bogotá]”, within the
meaning of ArticleVI of the Pact of Bogotá. This conclusion holds, according to the Court,
regardless of whether, as Chile maintains, the two limbs of Article VI have a different scope. The
Court does not therefore find it necessary in the circ umstances of the case to determine whether or
not there is a distinction between the legal effects of those two limbs.
The Court recalls that the Parties have pr esented their respective views on the “agreements,
diplomatic practice and . . . declarations” invoked by Bolivia to substantiate its claim on the merits.
It is of the view that, for purposes of determining the question of its jurisdiction, it is neither
necessary nor appropriate to examine those elements.
* - 4 -
The Court further recalls that it is for the Cour t itself to decide whether, in the circumstances
of the case, an objection lacks an exclusively preliminary character within the meaning of
Article 79, paragraph 9, of the Rules. If so, the Court must refrain from upholding or rejecting the
objection at the preliminary stage, and reserve its decision on this issue for further proceedings. In
the present case, however, the Court considers that it has all the facts necessary to rule on Chile’s
objection, and that the question whether the matters in dispute are matters “settled” or “governed”
by the 1904 Peace Treaty can be answered without determining the dispute, or elements thereof, on
the merits. Consequently, the Court finds that it is not precluded from ruling on Chile’s objection
at this stage.
V. THE C OURT ’S CONCLUSION REGARDING THE PRELIMINARY O BJECTION
(paras. 54-55)
Bearing in mind the subject-matter of the dispute, as earlier identified, the Court concludes
that the matters in dispute are not matters “alread y settled by arrangement between the parties, or
by arbitral award or by decision of an international court” or “governed by agreements or treaties in
force on the date of the conclusion of the [Pact of Bogotá]”. Consequently, Article VI does not bar
the Court’s jurisdiction under ArticleXXXI of the Pact of Bogotá. Chile’s preliminary objection
must therefore be dismissed.
In accordance with Article79, paragraph9, ofthe Rules of Court, the time-limits for the
further proceedings shall be fixed by order of the Court.
VI. OPERATIVE PARAGRAPH (para. 56)
For these reasons,
T HE C OURT ,
(1) By fourteen votes to two,
Rejects the preliminary objection raised by the Republic of Chile;
IN FAVOUR : President Abraham; Vice-President Yusuf; Judges Owada, Tomka, Bennouna,
Cançado Trindade, Greenwood, Xue, Donoghue, Se butinde, Bhandari, Robinson, Gevorgian;
Judge ad hoc Daudet;
AGAINST : Judge Gaja; Judge ad hoc Arbour;
(2) By fourteen votes to two,
Finds that it has jurisdiction, on the basis of Article XXXI of the Pact of Bogotá, to entertain
the Application filed by the Plurinational State of Bolivia on 24 April 2013.
IN FAVOUR : President Abraham; Vice-President Yusuf; Judges Owada, Tomka, Bennouna,
Cançado Trindade, Greenwood, Xue, Donoghue, Se butinde, Bhandari, Robinson, Gevorgian;
Judge ad hoc Daudet;
AGAINST : Judge Gaja; Judge ad hoc Arbour.
Judge ENNOUNA appends a declaration to the Judgment; JudgeC ANÇADO TRINDADE
appends a separate opinion to the Judgment; Judge AJA appends a declaration to the Judgment;
Judge ad hoc ARBOUR appends a dissenting opinion to the Judgment.
___________ Annex to Summary 2015/2
Declaration of Judge Bennouna
In his declaration, Judge Bennouna has felt it necessary to clarify the approach and role
which the Court should adopt when it examines a preliminary objection.
Judge Bennouna notes that there are three options available under Article 79, paragraph 9, of
the Rules: to uphold the objection, to dismis s it, or to declare that it does not possess an
exclusively preliminary character; this last option involves deferring the decision to the merits
stage.
Judge Bennouna recalls that the current Article 79, paragraph 9, of the Rules was amended in
1972 in order to curb abuse of the preliminary obj ection procedure. It is thus only in exceptional
circumstances that the Court may find that an ob jection does not have an exclusively preliminary
character, where it does not have all the elements required to make a decision, or where such a
decision would prejudge the dispute, or some aspects thereof, on the merits.
Judge Bennouna notes that where the Court uph olds or rejects an objection, it implicitly
regards the objection as preliminary. The Court is not bound by Article 79, paragraph 9, to begin
by characterizing it as preliminary. Judge Benn ouna finds that this approach accords with the
sound administration of justice.
According to Judge Bennouna, paragraphs52 and 53 of the Judgment are redundant and
misconceived, because the Court revisits an argu ment that Bolivia had simply put forward on a
subsidiary basis, namely that, in the event that the Court were to accept the definition of the
subject-matter of the dispute as proposed by Chile, the latter’s objection would no longer possess
an exclusively preliminary char acter. However, Judge Bennouna points out that the Court had
previously rejected the definition proposed by Chile and dismissed its objection based on
ArticleVI of the Pact of Bogotá. The argument of Bolivia had thus become moot.
Judge Bennouna finds that it is therefore not necessa ry to enter into discussions on this issue, just
before setting out the Judgment’s final conclusion.
Separate opinion of Judge Cançado Trindade
1. In his Separate Opinion, composed of sev en parts, Judge Cança do Trindade presents the
foundations of his personal position on the matter decided by the International Court of Justice
(ICJ) in the present Judgment on Preliminary Obje ction in the case concerning the Obligation to
Negotiate Access to the Pacific Ocean, between Bolivia and Chile, whereby the ICJ has found that
it has jurisdiction to consider the claim lodged with it under ArticleXXXI of the 1948 American
Treaty on Pacific Settlement (Pact of Bogotá) . Although he upholds likewise the Court’s
jurisdiction, there are certain asp ects of the question decided by the Court to which he attributes
importance for its proper understanding, which are not properly reflected in the Judgment, and he
feels thus obliged to dwell upon them in his Separate Opinion.
2. He begins by pointing out (PartI) that th e treatment dispensed by the ICJ in the present
Judgment, to the jurisdictional regime of the 1948 American Treaty on Pacific Settlement (Pact of
Bogotá), and in particular to the basis of its own jurisdiction (Article XXXI of the Pact) as well as
to the relevant provision (Article 79 (9)) of the Rules of Court, is far too succinct. In order to rest
on a more solid ground, the Court should, in his 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 - 2 -
the merits. The ICJ should, in his view, have de voted as much attention to ArticleXXXI of the
Pact and Article 79 (9) of the Rules of Court as it did as to Article VI of the Pact, in relation to the
factual context of the cas d’espèce.
3. In his Separate Opinion, Judge Cançado Tr indade addresses, at first, 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) (PartII).
Judge Cançado Trindade promptly warns that, in effect,
“a clear-cut separation between the procedural stages of preliminary objections and
merits reflects the old voluntarist-positiv ist 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 prelimin ary 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” (para. 6).
4. To him, “the search for justice transcends any straight-jacket conception of international
legal procedure” (para. 7). He recalls that, thr oughout its history, the Hague Court (PCIJ and ICJ)
has been attentive to th e interests of the parties and the pr eservation of the equilibrium between
them in the course of the procedure; hence the c onstant recourse by the Court to the principle of
the sound administration of justice (la bonne administ ration de la justice) (para.8). He recalls
successive examples in the case-law of the Hague C ourt disclosing its reliance on the principle of
the sound administration of justice (la bonne administ ration de la justice), as from a célèbre obiter
dictum of the PCIJ, in the Panevezys-Saldutiskis Railway (Order of 30.06.1938), in deciding to join
Lithuania’s preliminary objections to the merits.
5. That célèbre obiter dictum, he proceeds, was kept in mind, along the years, by the
ICJ as well, e.g., in the course of its prolonged handling of the Barcelona Traction case
(1964-1970). By then it was reckoned, he added, that, even if the joinder to the merits
appeared as an exceptional measure, “there were s ituations 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 necessity, in the interests of the sound administration of justice (la
bonne administration de la justice)” (para. 10). Judge Cançado Trindade then adds that,
“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 disclo se an exclusively ‘preliminary’ character”
(para. 11).
6. Judge Cançado Trindade then proceeds to an examination of the case-law of the PCIJ and
ICJ on the matter (Part III), and the corresponding cha nges in the pertinent provisions of the Rules
of Court (as from the Rules of 1936 and 1946), in particular the amendments introduced into the - 3 -
Rules of Court in 1972: the changes in the Rule s of Court of 1972 passed on to the Rules of Court
of 1978 and 2000, and remained the same to date. They did away with joinder of preliminary
objections to the merits, and focused, from then onwards, on the “not exclusively preliminary
character” of objections to jurisdiction (and admissibility).
7. The 1972 revision became object of atten tion in the ICJ’s Judgments on Jurisdiction and
Admissibility (of 26.11.1984) a nd on the Merits (of 27.06.1986 ) in the Nicaraguaversus United
States case; it was clarified that the amendments introduced into the new provision of the Rules of
Court, deleting the express reference to the joinder, were meant to provide more flexibility and to
avoid procedural delays, in the interests of the sound administration of justice. From the Court’s
decision in the Nicaraguaversus Un ited States case (1984-1986) onwards, he adds, the ICJ
has pursued this new outlook to the point at issue in its case-law (e.g., the Lockerbie cases, 1998;
the case of the Land and Maritime Boundary between Cameroon and Nigeria, 1998; the case of the
Application of the Convention against Genocide, Croatia versus Serbia, Preliminary Objections,
2008).
8. Judge Cançado Trindade ponders that “[ w]e 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 proce dural principles” (para.22). He then dwells upon
the relevance of general principles of international procedural law, as related to the foundations of
the international legal order, a nd 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 (Part IV). In his 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” (para. 23).
9. He recalls that, in another case, like the present one, opposing two other Latin American
States (Argentina and Uruguay), the case concerni ng Pulp Mills on the River Uruguay (Judgment
of 20.04.2010), he deemed it fit to call the Court’s attention, in his Separate Opinion, to the fact
that both contending parties, Argentina and Urugua y, had expressly invoked general principles of
law in the course of the contentious proceedings. In doing so, he added, theywereboth
“being faithful to the long-standing tradition of Latin American international legal thinking, which has
always been particularly attentive and devoted to general principles of law” (para. 24).
10. He then observes that the ICJ has remained attentive to general principles in the exercise
of the international judicial function, and adds:
“As master of its procedure, as well as of its jurisdiction, the Court is fully
entitled to determine freely the order in whic h 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 th e equality of parties, it also says what the
Law is (juris dictio, jus dicere)” (para. 25). - 4 -
11. He next reviews the case-law of the ICJ on general principles in distinct incidental
proceedings (paras. 26-31), keeping in mind the principle of the sound administration of justice
(la bonne administration de la justice), as well as in the joinder of proceedings (paras.32-35),
and in advisory proceedings (paras. 36-38). Judge Cançado Trindade then sums up that
“the principle of the sound administration of justice (la bonne administration de la
justice) permeates the considerations of a ll the aforementioned incidental proceedings
before the Court, namely, preliminary obj ections, provisional measures of protection,
counter-claims and intervention. As expect ed, 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” (para. 30).
12. He recalls that, in his Separate Opinions appended to the two Orders of the ICJ (of
17.04.2013) of joinder of the proceedings in two other Latin American cases, concerning Certain
Activities Carried out by Nicaragua in the Bord er Area (Costa Rica versus Nicaragua) and
Construction of a Road in Costa Rica along the San Juan River (Nicaragua versus Costa Rica), he
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. (...)
General principles of law have always marked presence in the pursuit of the
realization of justice. In my understanding, they comprise not on ly 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 understandi ng, 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” (cit. in para. 40).
13. Judge Cançado Trindade then proceeds to c onsider the general principles of international
law, Latin American doctrine and the significance of the 1948 Pact of Bogotá (PartV),
ArticleXXXI of which provides the jurisdictionalbasis for the Court’s present Judgment in the case
concerning the Obligation to Negotiate Access to th e Pacific Ocean. He then recalls that, as the
Pact of Bogotá was adopted in 1948, it was reckone d that stress needed to be laid by the Pact in
particular upon the importance of judicial settleme nt. ArticleXXXI of the Pact, in providing for
the compulsory jurisdiction of the ICJ for the settle ment of “all disputes of a juridical nature”, was
regarded as being in line with Latin American doc trine as to the primacy of law and justice over
recourse to force. - 5 -
14. Already in 1948, Judge Cançado Trindade proceeds, the 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 to that effect. Without imposing any specific
means of peaceful settlement, the Pact of Bogot á took a step forward in rendering obligatory
peaceful settlement itself, and enhanced recourse to the ICJ” (paras. 41-42).
15. The advance achieved with the adoption of the Pact of Bogotá was the culminating point
of the evolution, starting in the XIXthcentury, 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, he adds, arose out
of the concertation of the countries of the region in two series of Conferences, namely: (a)the
Latin American Conferences (1826-1889) ; and (b)the Pan American Conferences (1889-1948) , 2
leading to the adoption, in 1948, of the OAS Charter and the Pact of Bogotá. The gradual outcome
of this concertation echoed at the II Hague Peace C onference (1907), and in the drafting process of
the Statute of the PCIJ in 1920 and the ICJ in 1945 (para. 43).
16. 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,
threeyears after the adoption of the U.N. Charter in 1945, Judge Cançado Trindade adds,
Latin American States significantly did in Bogotá in 1948 what they had announced in
SanFrancisco as a goal: the recourse, under Artic leXXXI of the Pact of Bogotá, to the
compulsory jurisdiction of the ICJ, for the se ttlement of disputes of a “juridical nature”,
irrespective of the position that States Parties to the Pact might have taken under the optional clause
(Article36(2)) of the ICJ Statute (para.44). Ther e was, in the Pact of Bogotá, in the words of
Judge Cançado Trindade,
“a combination of the obligation to submit di sputes 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 ot her types of controversies; in this way,
the 1948 Pact innovated in providing for peaceful settlement of all disputes. 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 se ttlement), in particular the compulsory
jurisdiction of the ICJ. Hence the relevan ce of ArticleXXXI of the Pact, also in
relation to Article VI” (para. 46).
17. This may explain subsequent initiatives of its revision (in the mid- fifties, in the early
seventies, in the mid-eighties), which, however , did not prosper, and left the Pact unchanged
(paras. 47-53). The following point examined in th e present Separate Opinion was the reliance on the
Pact of Bogotá for judicial settlement by the ICJ (Part VI), intensified from the late eighties onwards
(as disclosed by the cases, e.g., of Border and Transborder Armed Actions (Nicaraguaversus
Honduras, 1988), Territorial and Maritime Dis pute between Nicaragua and Honduras in the
1
Starting 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).
2Starting with the Conference of Washington (1889), follo wed by the International Conferences of American
States of Mexico (1901-1902), Rio de Janeiro (1906), Bue nos Aires (1910), Santiago de Chile (1923), Havana (1928),
Montevideo (1933), Lima (1938), and Bogotá (1948, wherei n the OAS Charter and the Pact of Bogotá were adopted,
initiating the era of the OAS). - 6 -
Caribbean Sea (2007), Dispute regarding Naviga tional and Related Rights (Costa Ricaversus
Nicaragua, 2009), Pulp Mills on the River Uruguay (Argentina versus Uruguay, 2010), Territorial
and Maritime Dispute (Nicaraguaversus Colomb ia, 2013), Maritime Dispute (Peruversus Chile,
2014), in addition to five other cases, currently pending before the Court 3. Yet,
Judge Cançado Trindade adds,
“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
remaining a long path to follow...” (para. 55).
18. In sum, Judge Cançado Trindade proceeds, ArticleXXXI of the Pact of Bogotá
was intended to enhance the jurisdiction of the C ourt, 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 hi s 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” (para.57). It is nowadays
generally acknowledged that which sets forth the en gagement, 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” ,
by means of ArticleXXXI, which amounts to a compromissory clause, the Pact of Bogotá has
enhanced (independently of the optional clause Article 36 (2) of the ICJ Statute) the procedure
of judicial settlement by the ICJ (para. 58).
19. Judge Cançado Trindade then moves into the remaining line of considerations in his
Separate Opinion, namely, the third way (troisiè me voie/tercera vía) under Article79(9) of the
Rules of Court objection not of an exclusively preliminary character (Part VII). Despite the fact
that the present Judgment of the ICJ has very briefly referred to Article XXXI of the Pact of Bogotá
and to Article79(9) of the Rules of Court (i n comparison with the attention it devoted to
Article VI of the Pact), he notes, on other occasions the ICJ has elaborated of Article 79 (9)
(cases of Nicaraguaversus United States (merits, 1986), of Lockerbie (preliminary objections,
1998) of Territorial and Maritime Dispute be tween Nicaragua and Colombia (preliminary
objections, 2007) (paras. 59-60).
20. Judge Cançado Trindade recalls that 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) (para. 61), namely, in its terms:
“declare that the objection does not possess, in the circumstances of the case, an
exclusively preliminary character. If the Cour t rejects the objection or declares that it
does not possess an exclusively preliminary character, it shall fix time-limits for the
further proceedings”.
Such as the (merged) cases of Certain Activitie s Carried out by Nicaragua in the Border Area
(Costa Rica versus Nicaragua), and of C onstruction 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 ofovereign 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). - 7 -
21. This being so, the ICJ, moving into the merits, asserts its jurisdiction; this happens
because the character of the objection contains aspec ts relating to the merits, and thus requires an
examination of the merits. This is so in th e present case concerning the Obligation to Negotiate
Access to the Pacific Ocean, as to the dispute ari sen between Bolivia and Chile, as to whether their
practice subsequent to the 1904 Peace Treaty substant iates an obligation to negotiate on the part of
the respondent State. He adds that Chile’s obj ection “does not have an exclusively preliminary
character, appearing rather as a defence as to the merits of Bolivia’s claim” (para. 62).
22. Judge Cançado Trindade recalls that th ere 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 expr ess reference to any of such negotiations
specifically, the ICJ takes note (in para. 19) of argum ents 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 on
unsettled issues, well beyond the date of the adopti on of the Pact of Bogotá (on 30.04.1948), until
2012 (para. 63). Having stated that, he adds that
“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’” (para. 64).
23. The Court should thus have gone into the me rits on the understanding of the third way of
Article 79 (9) (supra); this would have been, in his perception, “the proper and more prudent way
for the Court” to dispose of the preliminary objec tion at issue (para. 66). Judge Cançado Trindade
then concludes that “the objection raised by Chile appears as a defence to Bolivia’s claim as to the
merits, inextricably interwoven with th is latter”. And the Court, anyway, he adds, does not
count on all the necessary information to render a decision on it as a “preliminary” issue. It is, in
his 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 fu ll. This would entail no delays at all for the
forthcoming proceedings as to the merits. Last but not least, ArticleVI of the Pact of Bogotá, in
Judge Cançado Trindade’s understa nding, does not exclude the Court’s jurisdiction in respect of
disputes arisen after 1948: “to hold otherwise would de prive the Pact of its effet utile. The Pact of
Bogotá, in line with the mainstream of Latin Am erican international legal doctrine, ascribes great
importance to the judicial settlement of disputes, its main or central achievement, on the
basis of its ArticleXXXI, a milestone in th e conceptual development of this domain of
international law” (para. 67).
Declaration of Judge Gaja
Bolivia’s request put the stress on negotia tions, but these are only a means for enabling
Bolivia to acquire a sovereign access to the sea. This fact should have been given more weight by
the majority when defining the dispute.
“Sovereign” access would have to be through a territory which was agreed in the 1904 Peace
Treaty as not being under Bolivian sovereignty. The matter of Bolivian access to the sea was thus
settled in 1904 and this would affect the Court’s ju risdiction under the Pact of Bogotá. However, a
matter that had been settled can become unsettled again if the parties so agree. - 8 -
Given the connection between the role that ne gotiations may have had in unsettling a matter
previously settled, on the one hand, and the possibi lity to infer from negotiations an obligation to
negotiate, on the other, the Court should have found that under these circumstances Chile’s
objection to jurisdiction does not have an exclusively preliminary character.
Dissenting opinion of Judge ad hoc Arbour
Judge ad hoc Arbour disagreed with the decision of the Court that Chile’s preliminary
objection had an exclusively preliminary character within the meaning of Article79(9) of the
Rules of Court, and can thus be disposed of at the preliminary stage. She stated it should have been
postponed until after a full hearing on the merits.
She noted that the way Bolivia pleaded the s ubject-matter of its claim changed between its
Application, Memorial and the First and Second Round of Oral Hearings. As a result, it was
difficult to determine the scope and content of the alleged obligation of Chile to negotiate
sovereign access for Bolivia to the Pacific Ocean and, in particular, whether this alleged obligation
was one of result.
Judge ad hoc Arbour noted that if Bolivia was alleging that Chile had an obligation to cede a
sovereign part of its territory to Bolivia in orde r to grant it access to the Pacific, on terms to be
negotiated, the Court would have no jurisdiction u nder ArticleVI of the Pact of Bogotá, since
the question of sovereign access to the Pacific Ocean was a matter settled or governed by the
1904 Peace Treaty. The uncertainty about the nature, content and scope of the alleged obligation to
negotiate makes it premature to decide on the subject-matter. Thus Judge ad hoc Arbour concluded
that the preliminary objection should not have been disposed of at this stage, but should have been
postponed until after a full hearing on the merits.
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Summary of the Judgment of 24 September 2015