109

SEPARATE OPINION OF JUDGE ODA

1. When considering the jurisdiction of the International Court of Jus-
tice in contentious cases, I take as my point of departure the conviction
that the Court’s jurisdiction must rest upon the free will of sovereign
States, clearly and categorically expressed, to grant to the Court the
competence to settle the dispute in question. In the present case the Court
may have reason to interpret the wording of Article XXX] of the Pact of
Bogota as conferring compulsory jurisdiction upon it, particularly in view
of the fact that some States, like the United States and El Salvador, have
also construed it in this way, whether explicitly or by implication, when
evincing their respective positions in relation to the Pact. I accordingly
voted in favour of the first part of the Judgment, but I did so with some
reluctance. This reluctance derives from my doubts as to whether the Pact
of Bogota may not be interpreted differently, owing to the equivocal draft-
ing of its text, and whether the American States, in adopting the Pact of
Bogota in 1948, actually might not have intended it to confer compulsory
jurisdiction upon the Court. I feel that it is right for me to express my
reservations, which are the following.

I

2. The Court bases its jurisdiction in the present case solely on
Article XX XI of the Pact of Bogota. It finds that

“the commitment in Article XXXI of the Pact is independent of
such declarations of acceptance of compulsory jurisdiction as may
have been made under Article 36, paragraph 2, of the Statute and
deposited with the United Nations Secretary-General pursuant to
paragraph 4 of that same Article” (para. 41),

and that Article XXXI, which “of itself constitutes acceptance of the
Court’s jurisdiction” (para. 32), “relates to cases in which the Court can be
seised directly” (para. 47). The Court refrains from suggesting expressly
that this particular provision is one by which its jurisdiction is conferred
in terms of Article 36, paragraph 1, yet denies that Article XXX1 is to be
regarded as a declaration of acceptance of compulsory jurisdiction under
Article 36, paragraph 2, of the Statute.

Turning to Article XXXII, the Court states that it provides for a way of
access to the Court that is distinct from that of Article XXXI (para. 47).
While characterizing Article XXXII as a provision “refer[ring] expressly

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to the jurisdiction which the Court has under Article 36, paragraph 1, of
the Statute” (para. 45), it holds that under that provision “the parties have,
in general terms, an entitlement to have recourse to the Court in cases
where there has been an unsuccessful conciliation” (ibid.), and that it re-
lates to “those [cases] in which the parties initially resort to conciliation”
(para. 47). The Court concludes that “Articles XX XI and XXXII provide
for two distinct ways by which access may be had to the Court” (ibid.). At
any rate, Article XXXII is deemed, in the Judgment, to be irrelevant in the
present case.

3. In both the written and the oral proceedings Honduras presented an
interpretation quite contrary to that arrived at by the Court. An interpreta-
tion similar to that of Honduras, and equally different from the Court’s
position, is also to be found in the official or semi-official publications of
the Organization of American States.

In his report on the Ninth International Conference (Bogota) of
American States that was presented to the Council of the Organization of
American States in November 1948, Mr. Alberto Lleras, the Secretary-
General of the Organization of American States, stated that:

“the Treaty provides for a logical system of measures for pacific
settlement from among which the States may choose; but if their
application does not lead to a solution and the conciliatory stage
expires without agreement by the parties to submit the matter to arbi-
tration, any one of the parties is entitled to appeal to the Interna-
tional Court of Justice, which has compulsory jurisdiction under
Article 36 of its Statute.

The procedures are not given in the Treaty in any order of prefer-
ence, and the parties may select the one they consider most appro-
priate in each case, without being under obligation to utilize all the
procedures. It might occur, for example, that from the time of disrup-
tion of direct negotiations in a given case there might be agreement to
submit the dispute to arbitration or to the International Court of
Justice, without resorting to conciliation or good offices and media-
tion. All these procedures presuppose agreement between the parties
having recourse to them. But should the conciliatory stage pass
without producing results — either because one of the parties was
opposed or because no agreement could be reached — then judicial
procedure becomes compulsory if one of the parties appeals to the
International Court of Justice.” (Annals of the Organization of
American States, Vol. I, No. 1, pp. 48-49.)

Dr. F. V. Garcia-Amador, who was formerly the Director of the Depart-
ment of Legal Affairs of the Organization of American States, incorpo-
rated these passages into his annotated book, The Inter-American System,
which was published in 1983 (Vol. I, Part 2, p. 231).

Another book with the same title, The Inter-American System, was

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published in 1966 by the Inter-American Institute of International
Legal Studies, of which the Secretary-General was Dr. Garcia-Amador.
It contained the statement that:

“The new system established obligatory judicial settlement as the
definitive method for the solution of controversies. .. . [I]t should be
pointed out, above all, that by virtue of Article XX XI the High Con-
tracting Parties ‘declare that they recognize, in relation to any other
American State, the jurisdiction of the Court as compulsory ipso
facto, without the necessity of any special agreement so long as the
present Treaty is in force, in all disputes of a juridical nature that
arise among them concerning. . .’ There follow the four categories of
disputes listed in paragraph 2 of Article 36 of the Statute of the Inter-
national Court of Justice. In this sense, the pact itself constitutes an
unconditional declaration of the type foreseen in that article.

The foregoing notwithstanding, the compulsory nature of the judi-
cial settlement is subject, to be precise, to the fact that the conciliation
procedure established in the pact or by the decision of the parties has
not led to a solution and, in addition, that the said parties have not
agreed on an arbitral procedure. Only in these circumstances may
one of the parties exercise its right to have recourse to the Court and
the other, therefore, be subject to its jurisdiction (Art. XXXII.”
(Pp. 78-79.)

These authoritative interpretations of the Pact of Bogota, which are in
themselves somewhat confusing and ambiguous, strike one as contrary in
certain respects to what the Court concludes in its Judgment. It may be
asked whether the interpretations presented in the official or semi-official
documents of the Organization of American States were ill founded or
whether some reasonable explanation can be given to account for them.

4. My doubts as to whether the unqualified conferral of jurisdiction on
the Court by virtue of Article XXXI, as indicated in the Judgment, is in
fact well founded, also derive from two further considerations.

Firstly, I have concluded that the Court’s interpretation of Articles
XXXI and XXXII in the Pact of Bogota appears much less persuasive if
one looks at the meaning given to the terms of the Pact in their context,
particularly if the Pact is compared with two existing multilateral treaties
drawn up mainly for the purpose of the peaceful settlement of disputes
and specifically providing for the compulsory jurisdiction of the Interna-
tional Court of Justice — the Revised General Act for the Pacific Settle-
ment of International Disputes, adopted by the United Nations General
Assembly in 1949, and the European Convention for the Peaceful Settle-
ment of Disputes, adopted at Strasbourg in 1957. I shall examine the terms
of the Pact in paragraphs 5-6 below.

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Secondly, an additional argument in the Judgment to the effect that:

“It is, moreover, quite clear from the Pact that the purpose of the
American States in drafting it was to reinforce their mutual commit-
ments with regard to judicial settlement. This is also confirmed by the

‘travaux préparatoires” (para. 46),

does not seem to reflect the history of the drafting of the Pact of Bogotä.
The brief record of developments prior to the Bogota Conference and a
perusal of the travaux préparatoires together make it difficult to conclude
with complete confidence that the American States, when drafting the
Pact, intended to strengthen the jurisdiction of the Court. My interpreta-
tion of “the object and the purpose of the Pact” may, for that reason, differ
from that of the Court in its Judgment (ibid.). An examination of its history
requires a more detailed account (paras. 8-13 below).

II

5. Ishall start by examining the meaning to be given to the terms of the
Pact of Bogota in their context. In the first place, if, as suggested in the
Judgment, Article XXXII is an independent clause, distinct from and
additional to Article XXXI, which confers jurisdiction upon the Court
under Article 36, paragraph 1, of the Court’s Statute, and if both confer
jurisdiction upon the Court under that Article of the Statute, it may be
asked whether it is not the implicit intention of the Judgment to state that,
while any legal disputes are covered by Article XXXI, other disputes — in
other words, those which do not fail within the categories specified in
Article XXXI — shall also be subject to the compulsory jurisdiction of
the Court under Article XXXII.

Certainly, the jurisdiction of the Court comprises “all matters specially
provided for .. . in treaties and conventions in force”(Art. 36, para. 1, of
the Statute), and there are a number of bilateral and multilateral treaties
which specify certain types of disputes as being subject to the compulsory
jurisdiction of the Court. Yet is it conceivable that the States parties to the
Pact of Bogota accepted in general terms the Court’s jurisdiction for all
“international controversies” (Art. II of the Pact) of whatever nature,
without specifying the types of disputes? In spite of the wording of
Article 36, paragraph 1, of the Statute to the effect that “[tlhe jurisdiction
of the Court comprises... all matters specially provided for. . . in treaties
and conventions in force”, has the idea of collectively giving such a
carte blancheto the Court ever been juridically expressed on any previous
occasion ?

Here a distinction has to be made between the typical compromissory
clause which ex hypothesi, if not explicitly, is confined to the subject-
matter of the treaty concerned, and a clause which is part of a general
dispute-settlement convention. In the latter case, if the clause provides for

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judicial settlement, States (as in the case of the 1949 Revised General Act
and the 1957 European Convention) take care to protect their sovereignty
by specifying the types of disputes which they will consent to have
adjudicated. Accordingly, when I consider the Court’s construction of
Article XXXII of the Pact of Bogota, I feel bound to ask: has any other
treaty or convention, comprising such a comprehensive obligation to
adhere to the Court’s jurisdiction, ever in fact existed ? Certainly not.

This leads to an alternative interpretation of Article XXXII, namely,
that this particular Article may only have any significance if the con-
ditions found in it qualify the jurisdiction in the preceding Article,
Article XXXI. In other words, the parties may have recourse to the
Court in respect of the disputes specified in Article XX XI with the quali-
fications stated in Article XXXII.

The Spanish version of Article XXXII, second sentence, states as fol-
lows:

“La jurisdiccion de la Corte quedara obligatoriamente abierta
conforme al inciso 1° del articulo 36 del mismo Estatuto”,

which may be translated into English word for word as:

“The jurisdiction of the Court will remain obligatorily available in
accordance with Article 36, paragraph 1, of the said Statute.”

This wording may properly be interpreted as implying that the jurisdic-
tion of the Court, mentioned in Article XXXII, is the same as that of the
previous Article, Article XX XI, and is therefore also subject to the condi-
tions of that Article. To refer to the French version of the text (see Judg-
ment, para. 45) to support the contrary interpretation does not seem to
me to be acceptable.

6. The Court is content to interpret Article XXXII in the sense that
the reference, in that provision, to the procedure of conciliation is meant
simply to imply that the parties may have recourse to the Court in the event
of the failure of that procedure. The Court remains silent with regard to
the curious fact that, while that Article specifies the occasional failure of
conciliation, it does not mention the failure of other pacific procedures
established in the Pact, such as good offices, mediation, or investigation.

It may be useful to look at the comparable treaties providing a general
system for the peaceful settlement of disputes, as mentioned previously.
The 1949 Revised General Act clearly provides in an unequivocal manner
for the obligation of judicial settlement, providing that:

“All disputes with regard to which the parties are in conflict as to
their respective rights [including in particular those mentioned in
Art. 36, para. 2, of the Statute] shall . .. be submitted for decision to
the International Court of Justice, unless the parties agree. . .to have
resort to an arbitral tribunal.” (Art. 17.) (United Nations, Treaty
Series, Vol. 71, p. 101.)

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There is also an obligation in parallel to submit to the procedure of concil-
iation. Any dispute of a non-legal nature which fails to reach a solution
through conciliation is to be brought before an arbitral tribunal — and not
the Court (Art. 21).

In the 1957 European Convention it is stated that:

“The High Contracting Parties shall submit to the judgement of
the International Court of Justice all international legal disputes . . .
including, in particular, those [mentioned in Art. 36, para. 2].”
(Art. I.) (United Nations, Treaty Series, Vol. 320, p. 243.)

Disputes not falling within the scope of judicial settlement are to be sub-
mitted to the procedure of conciliation, and disputes considered as being
other than of a legal nature and which have not been settled by concilia-
tion are to be submitted to arbitration — not to the Court (Art. 19).

These two treaties each contain a single article providing for the com-
pulsory submission of legal disputes to the Court, and are without any
doubt conceived as “treaties and conventions in force” under Article 36,
paragraph 1, of the Statute, “specially provid[ing] for” “all matters” which
“[the jurisdiction of the Court comprises”. In addition, reference to con-
ciliation is obligatory for those cases which do not fall within the scope of
the compulsory jurisdiction of the Court and, if conciliation fails, there
remains an obligation of arbitration.

If there is no obligation of conciliation preceding recourse to the Court,
why should the Pact of Bogota have had to refer simply to the occasional
cases in which conciliation fails? Should Article XXXII not rather be
interpreted as meaning that recourse to the procedure of conciliation is
a prerequisite for the compulsory referral of a dispute to the Court under
the Pact of Bogota?

7. I do not venture to suggest that this interpretation of the Pact of
Bogota is the only correct one, because it may also not prove entirely con-
vincing in the overall context of the Pact. This is because the requirement
of conciliation prior to resort to the Court does not seem wholly compat-
ible with the submission of legal disputes to the Court, even in the light
of the two other general dispute-settlement treaties, as mentioned above.
A clue to solving this paradox of the Pact may well be found through an
examination of the process within which the system of the peaceful settle-
ment of disputes — the concept of judicial settlement in parallel with
the procedure of conciliation — had evolved up to 1948 in the forum of
American States and the process within which the Pact was drafted at
the Bogota Conference. This will also indicate that there was not the
slightest idea, in either of these processes, of enacting in general terms,
in any treaty, the compulsory jurisdiction of the former or present Court
for either legal or non-legal disputes — still less for both.

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I

8. At the Conference of Conciliation and Arbitration convened in
Washington in January 1929, two treaties were signed by 20 American
States : the General Convention of Inter-American Conciliation and the
General Treaty of Inter-American Arbitration. The States parties to the
former treaty agreed “to submit to the procedure of conciliation ... all
controversies of any kind... which it may not have been possible to settle
through diplomatic channels” (Art. 1). The latter treaty provided for com-
pulsory arbitration for

“all differences of an international character [arising] by virtue
of a claim of right ... which it has not been possible to adjust by
diplomacy and which are juridical in their nature by reason of being
susceptible of decision by the application of the principles of law”
(Art. 1).

In neither of these treaties, however, was there any mention of a sub-
mission of disputes to the Permanent Court of International Justice which
had already been in existence since 1922. (As of 1948 the former treaty was
effective for 18 States and the latter for 16 States.)

The Juridical Committee of the Pan American Union proposed, in
March 1944, a Draft Treaty for the Coordination of Inter-American Peace
Agreements which co-ordinated the separate treaties of the past into a
single instrument (Inter-American Juridical Committee, Recommenda-
tions and Reports, Official Documents, 1942-1944, p. 53) and further pre-
pared the draft of an Alternative Treaty Relating to Peaceful Procedures
(ibid., p. 69). It was proposed that the States parties should declare that:

“the settlement of disputes or controversies of any kind that may
arise among them shall be effected only by the pacific means which
have the sanction of international law” (Art. D),

and bind themselves to submit to arbitration all differences, as defined in
the 1929 Arbitration Treaty, which it had been impossible to adjust not
only by diplomacy but also by mediation (Art. VI). The draft treaty also
suggested, as an alternative to submission to arbitration, referral

“by mutual agreement . . . to a court of international justice in
accordance with the terms of a treaty to which they may both be
parties, or to the procedure of investigation and conciliation set
forth in the present Treaty” (Art. VII).

In parallel, the draft treaty laid down the obligation of recourse to the con-
ciliation procedure for all disputes which it had not been possible to settle
by direct negotiation, by mediation, or by the procedure of arbitration
(Art. XIII). In its accompanying report the Juridical Committee stated as
follows:

“The Juridical Committee is of the opinion that the procedure of
arbitration should be put in the foreground and that attention should

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be directed to it as the preferable method of settling disputes of a
juridical character which it has not been possible to settle by diplo-
matic negotiation. An alternative to the procedure of arbitration
would be the procedure of judicial settlement in case the States in
controversy were parties to a treaty providing for the judicial settle-
ment of juridical disputes and are in accord to have recourse to that
procedure. At the same time, while arbitration and judicial settle-
ment are recognized by the Committee as being in principle the
proper procedures for the settlement of juridical disputes, it would
seem unreasonable to deny to the parties the right to have recourse to
the procedure of conciliation for the settlement of such disputes if
they are in accord in preferring that more elastic procedure...

Arbitration is thus obligatory for all juridical disputes which the
parties do not, by mutual agreement, prefer to settle by the procedure
of judicial settlement or of conciliation. . . .” (Recommendations and
Reports, Official Documents, 1942-1944, pp. 89-90.)

With the end of the war in sight, the American States sent representa-
tives to Chapultepec in February/March 1945 for the Inter-American
Conference on Problems of War and Peace. The Conference recom-
mended to the Inter-American Juridical Committee the “immediate
preparation of a draft of an ‘Inter-American Peace System’ which will
coordinate the continental agreements for the prevention and pacific
solution of controversies” (The International Conferences of American
States, Second Supplement, 1942-1954, p. 101). The Juridical Committee
accordingly prepared a draft of such a system (Comité Juridico Inter-
americano, Recomendaciones e Informes, Documentos Oficiales, 1945-
1947, p. 49; English text supplied by the Organization of American
States), which provided that the States parties would thereby agree to
have recourse at all times to peaceful procedures (Art. I). In the event that
a controversy should arise which could not be settled by direct negotia-
tions through the usual diplomatic channels, the States parties would
recognize the obligation of having recourse to inter-American regional
procedures such as those of mediation, investigation and conciliation,
arbitration, judicial settlement, or inter-American consultation (Art. IT).
The States parties would further:

“recognize the suitability of submitting either to arbitration or to
judicial settlement all controversies which may arise between
them which are legal in their nature by reason of being susceptible of
decision by the application of principles of law” (Art. XVI).

The text was transmitted to the American Governments for their observa-
tions. Some Governments sent observations on the draft (Novena Confer-
encia Internacional Americana, Actas y Documentos, Vol. IV, pp. 25-35);
among which were proposals by Honduras and Mexico, which advocated
the additional concept of “recourse to the International Court of Justice”.

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9. Following the end of the Second World War, the Inter-American
Conference for the Maintenance of Continental Peace and Security (Rio
de Janeiro) met in August/September 1947 and recommended that at
the forthcoming Ninth International Conference of American States in
Bogota:

“there be studied with a view to approval, institutions which may give
effectiveness to a pacific system of security and among them compul-
sory arbitration for any dispute which may endanger peace and
which is not of a juridical nature” (The International Conferences of
American States, Second Supplement, 1942-1954, p. 154).

The Inter-American Juridical Committee accordingly drafted the “Pro-
ject of Inter-American Peace System” for discussion by the delegates to
the Bogota Conference (Actas y Documentos, Vol. IV, p. 6; English text as
CB-6-E of the Documents of the Pan American Union).

That Project was thus prepared as a basis for a new treaty to be adopted
at Bogota. Articles XXXI and XXXII of the Pact of Bogota, which are
relevant in the present case and to which reference is made in the Judg-
ment, originate from the provisions in the 1947 Project, as quoted below:

“Part IV. Procedure of Arbitration

Article XVII

The High Contracting Parties bind themselves to submit to arbitra-
tion the controversies of any nature, juridical or non-juridical, which
have arisen or may arise in the future between them and which in the
opinion of one of the parties it has not been possible to settle by
diplomatic means or by the procedures of mediation and investiga-
tion and conciliation.

Article XVIII

Notwithstanding the provisions of the preceding article, it is recog-
nized that the Parties, if in agreement to do so, may submit their
controversies to the International Court of Justice, when they have
accepted previously its obligatory jurisdiction under the terms of
article 36 of the Statute.

The controversies to which this article is applicable are those refer-
ring to the following matters:

(a) The interpretation of a treaty;

(b) Any question of international law;

(c) The existence of any fact which, if established, would constitute a
breach of an international obligation;

(d) The nature and extent of the reparation to be made for the breach
of an international obligation.”

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The report annexed to the 1947 Project explains the ideas underlying
the provisions of this draft:

“24. Part IV of the draft, referring to arbitration procedure, par-
ticularizes :

1. Why arbitration is established for all kind of questions. Whence it
is deduced that those of a juridical nature, as well as those not of that
character, are subject to the said arbitration.

2. Why arbitration i is compulsory in every dispute that has not been
settled by procedures of mediation or of investigation and concilia-
tion. Hence, if for any reason such procedures do not terminate the
dispute the latter will inevitably have to be submitted to arbitra-
tion...

25. Article 18 permits the parties, if they agree, to submit to the
International Court of Justice, whenever they have previously
accepted its compulsory jurisdiction, the disputes enumerated in
article 36 of the Statute thereof.

Consequently, arbitration continues to be the general rule in
regard to such disputes. But, by common consent, the parties may
resort to the Court. In the absence of such consent, the arbitra-
tion procedure provided for in the Treaty shall be compulsory. ...”
(Actas y Documentos, Vol. IV, p. 20; English text, p. 25.)

Dr. Charles G. Fenwick, Director of the Department of International
Law and Organization of the Pan American Union, made an analytical
comparison between the 1945 and the 1947 texts in a memorandum dated
January 1948 (ibid., Vol. IV, pp. 35-39):

“5, In contrast to the 1945 Project, the 1947 Project submitted by
the Juridical Committee establishes arbitration as the final and
definitive procedure that should be followed in all cases. ... The fun-
damental change in the 1947 Project appears in Article XVII, which
refers to arbitration procedure. The High Contracting Parties com-
mit themselves to submit to arbitration all disputes of any nature,
be they juridical or not which, in the opinion of one of the Parties, it
may not have been possible to resolve by any of the procedures of
mediation, investigation or conciliation, established in the preceding
articles. In this fashion the Juridical Committee has tried to offer a
final and definitive procedure such as may assure the resolution of all
controversies be they of a political or juridical character.” (Trans-
lation from the Spanish text.)

The following three points may be seen as distinctive characteristics of
the 1947 Project. Firstly, the member States agreed in general terms to
-make use of good offices and mediation, investigation and conciliation,
and arbitration and judicial settlement; secondly, the member States
bound themselves to submit to arbitration such disputes of any nature,
juridical or non-juridical, as it had not been possible to settle by dip-
lomatic means or by the procedures of mediation, investigation and

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conciliation; thirdly, notwithstanding the obligation of the procedure of
arbitration, it was recognized as indicated in Article XVIII, which was
linked to the preceding Article, that the member States might submit to
the International Court of Justice such disputes as were enumerated in
Article 36, paragraph 2, of its Statute. This would be possible only if the
parties were “in agreement to do so” and when they had “accepted
previously its obligatory jurisdiction under the terms of Article 36 of
the Statute” (Art. XVID.

Thus the 1947 Project did not give any indication that the American
States should be subject to compulsory settlement of disputes by the
International Court of Justice in terms of either the first or the second
paragraph of Article 36 of the Statute.

10. Both before and during the Bogota Conference, a number of States
either commented on the Committee’s 1947 text or proposed amendments
to it (Actas y Documentos, Vol. IV, pp. 39-79). As regards judicial settle-
ment, Brazil and Mexico made proposals after the Conference had com-
menced. The former proposed rewording Article XVIII so as to provide
that the obligation of arbitration would not prejudice the right of direct
recourse to the International Court of Justice in cases in which the juris-
diction of that Court had been accepted as compulsory by both parties,
and where the dispute was to be submitted by common consent to the
judgment of the Court. The latter proposed that the judicial procedure
should be initiated in cases in which the parties had previously accepted
the compulsory jurisdiction of the International Court of Justice, and that
the obligation of arbitration should be maintained, except in cases of re-
course to judicial procedure, for such differences of any nature, juridical
or non-juridical, as they had not been able to settle by diplomatic means or
by any other pacific procedure. Honduras proposed as late as 22 April, in
the last stage of the Conference, a draft resolution on the jurisdiction of
the International Court of Justice, in which the Bogota Conference would
merely recommend that the American States should formulate and
deposit, as soon as possible, declarations under the optional clause of
the Court’s Statute.

In none of those proposals presented by various Governments was
there, however, any indication that the forthcoming treaty would itself
become a treaty conferring compulsory jurisdiction upon the Court
under Article 36, paragraph 1, of the Statute.

+

11. Having thus considered how the American States handled the
matter of the judicial settlement of disputes in parallel-with the procedure
of arbitration and conciliation in the process leading up to the 1948 Con-
ference of Bogotä, and having shown that there was at that time not even
the slightest idea of granting compulsory jurisdiction to the previous or
present Court, I now wish to look at the drafting history of those provi-

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sions of the 1948 Pact of Bogota, which — depending on their content —
might allow the Court to sustain the concept of the compulsory jurisdic-
tion of the International Court of Justice. In fact, as the Court suggests,
the travaux préparatoires:

“must of course be resorted to only with caution, as not all the stages
of the drafting of the texts at the Bogota Conference were the subject
of detailed records” (Judgment, para. 37).

The reader may well be puzzled by the way in which certain texts used
in the 1947 Project suddenly disappeared without trace, while new texts
were incorporated into the 1948 Pact without substantive discussion. The
picture given in the Judgment in this connection (para. 46) does not
appear to be complete. I will endeavour to trace the way in which the
text developed at the Bogota Conference, as indicated in the travaux pré-
paratoires.

12. In principle, the subject of the peaceful settlement of disputes was
assigned to Committee III, which commenced its work on 2 April (Novena
Conferencia Internacional Americana, Actas y Documentos, Vol. IV, p. 98).
It in turn entrusted the work to Sub-Committee ITI-A, which consisted
of the delegates of all the participating States. Thereafter, Committee III
did not hold a meeting until 27 April, when its second meeting took
place (ibid., p. 106). Sub-Committee III-A, during its first three meetings
from 7 to 9 April (ibid., pp. 222-229), listened to a general discussion on
the subject by some delegates. It then adjourned its proceedings for
two weeks and, at its fourth (and final) meeting on 24 April, divided into
three working groups (ibid. p. 230). Sub-Committee III-A did not
meet after that time. There is no record of the working groups, except for
a report of the first working group appointed to study general norms of
the Inter-American System of Peace (ibid., p. 80), which dealt with Part I
(“General Obligation to Settle Disputes by Peaceful Procedures”) of the
1947 Project as well as with Chapter II (“Pacific Settlement of Disputes”)
of the Project of the Organic Pact.

Committee III discussed the subject at its second, third and fourth
meetings on 27 and 28 April (ibid., pp. 106-220). The discussions on
Part IV (“Procedure of Arbitration”) commenced at the third meeting in
the afternoon of 27 April. The Judgment states, in this respect, that

“At that meeting ... the delegate of Colombia explained to the
Committee the general lines of the system proposed by the Sub-Com-
mittee which had prepared the draft; the Sub-Committeee took the
position ‘that the principal procedure for the peaceful settlement of
conflicts between the American States had to be judicial procedure
before the International Court of Justice’.” (Para. 46.)

In fact, the delegate of Colombia was requested by the Chairman of Com-

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mittee III to speak about the work of the working groups appointed on
24 April. He, himself, was only a member of the third working group deal-
ing with Parts IV, V and VI (“Procedure of Arbitration”, “Procedure of Judi-
cial Settlement” and “Final Provisions”) (and composed of the delegates of
’ Argentina, Brazil, Colombia, Honduras, the United States, Mexico and
Uruguay), which did not produce any official documentation. The del-
egate of Colombia began to speak on the work of Sub-Committee III-A,
though that Sub-Committee had neither prepared any draft nor taken any
position, while, as stated above, there had been general debates between
several delegates in its early stages (between 7 and 9 April), but had con-
cluded its meeting by dividing the work into three working groups. It
might have been possible, at least according to the statement of the Chair-
man of Committee III, that the working groups had prepared some
articles.

The statement made by the delegate of Colombia, as quoted in the Judg-
ment, and as mentioned above, was followed up by a remark to the effect
that:

“(the Sub-Committee] consequently established Part IV of the draft,
which contains the rules concerning that procedure. At the same
time, it decided that the procedure of arbitration should be a supple-
mentary, subsidiary procedure, for cases in which the judicial pro-
cedure could not produce results.” (Actas y Documentos, Vol. IV,
p. 156.)

The delegate of Colombia referred to the proposal made a few days earlier
by Honduras (as indicated above) and continued to explain the current
status of “signatures” and “ratifications” of the optional! clause by the
American States. In spite of what he stated (and what was quoted in the
Judgment), the delegate of Colombia seems to have done no more than
report upon the delegates’ comments during the early stages of Sub-Com-
mittee IJJ-A. He then turned to subjects such as “reservation of domestic
jurisdiction” among others, which have no direct relevance in this in-
stance. His statement concluded with a reference to the general system of
peaceful settlement of disputes. He did not intend to discuss draft Articles
XVII and XVIII, and did not discuss them.

The discussion of the first Article in Part IV of the Project, that is the
draft Article XVII, started much later, when Committee III decided to
continue its meeting later that afternoon instead of postponing it until the
following day. The text of draft Article XVII, which was thus introduced
on 27 April, read:

“In conformity with Article 36 of the Statute of the International
Court of Justice, the High Contracting Parties declare that they
recognize in relation to any other American State, the jurisdiction
of the Court as compulsory ipso facto, without the necessity of any

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special agreement so long as the present Treaty is in force, in all dis-
putes of a juridical nature that arise among them concerning:

(a) The interpretation of atreaty;

(b) Any question of international law;

(c) The existence of any fact which, if established, would constitute
the breach of an international obligation; or

(d} The nature or extent of the reparation to be made for the breach
of an international obligation. . . .” (Actas y Documentos, Vol. IV,
p.161.)

The wording of this text was quite different from the text of Article XVIII
of the 1947 Project. We do not know who drafted it or when it was drafted,
though we can probably guess that it was one of the matters in the hands of
the seven-delegate working group, as mentioned above. The purpose
behind the drafting of the newly formulated text in terms so different
from those of the 1947 Project is unknown.

The way in which this particular Article was dealt with by Committee
III is fully explained in the Judgment (para. 37) and may not require any
further explanation, except that the suggestion that the words “any other
American States” should be replaced by the words “any other Member
State of the Organization” was “approved” (Actas y Documentos, Vol. II,
p. 162). The references in the Judgment to the statements made by the
delegates of the United States, Mexico, Colombia, Ecuador and Peru
(para. 37) are quite correct. It may be interesting to note however that, as
the travaux préparatoires clearly indicate, the text of draft Article XVII
was neither formally “approved” nor subjected to a vote, even though the
inclusion of an additional article was “rejected”.

With regard to draft Article XVIII (the text of which must have been
distributed together with Article XVII, but which was not included in the
travaux préparatoires), Committee III agreed that the provision would be
taken up by the working group on the following day (Actas y Documentos,
Vol. II, p. 167). On that day, 28 April, Committee III received the follow-
ing proposed text reported by the working group:

“When the conciliation procedure previously established in the
present Treaty or by agreement of the parties has not led to asolution,
and the said parties have not agreed upon an arbitral procedure,
either of them shall be entitled to have recourse to the International
Court of Justice in the manner prescribed in Article 40 of the Statute
thereof. The Court shall have compulsory jurisdiction in accordance
with Article 36, paragraph 1, of the said Statute.” (Ibid. p. 171.)

This text, which is quite different from that of 1947, seems also to have
differed from the text of the previous day, as a member (delegate of Brazil)
of the working group stated that draft Article X VIII had been replaced by
this new text.

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No delegate spoke in support of the new text, and no discussion was
held. The words “has not led to a solution” were replaced by “does not
lead to a solution” upon the suggestion of Colombia. The text thus
amended was “approved” by the affirmative votes of 9 of the 14 represen-
tatives (13 States and the Pan American Union) who were present (Actas y
Documentos, Vol. II, p. 171).

13. The text of the Inter-American System of Pacific Settlement (ibid,
p. 83), as adopted at Committee III, was then sent to the Committee
on Co-ordination and to the Drafting Committee. The Committee on
Co-ordination met on five occasions between 26 April and 1 May (ibid.,
pp. 435-590) and took up the text of the Inter-American System of Pacific
Settlement at its fourth meeting on 29 April (ibid., p. 538). The title was
changed to “American Treaty of Pacific Settlement”. The draft articles
were renumbered, but no substantive discussion took place concerning
the texts with which we are concerned. The Drafting Committee did not
leave any record, other than one very brief and general report, which tells
us nothing (ibid., p. 591).

The Pact of Bogota was approved by acclamation at the plenary session
on 30 April, without further discussion (Actas y Documentos, Vol. I,
p. 234). The final text of the Pact of Bogota was different from the text
approved by Committee III in that the expressions “in conformity with
Article 36 of the Statute of the International Court of Justice” and “in rela-
tion to any other Member States of the Organization” in Article XXXI
(formerly draft Article XVII) were replaced by “in conformity with Arti-
cle 36, paragraph 2, of the Statute of the International Court of Justice”
and “in relation to any other American States”.

14. I have just shown that the process whereby the provisions of Arti-
cles XXXI and XXXII (formerly Articles XVII and XVIII in the 1947
Project) were drafted at the Bogota Conference remains a mystery. Unlike
the closely linked provisions of Articles XVII and XVIII in the 1947
Project, the new texts of draft Articles XVII and XVIII placed before
Committee III of the Conference (the authors and sponsors of which
are unknown) seemed to be quite distinct in their nature. No delegate at
the Conference at any time suggested that the provisions of the draft
would constitute an acceptance of the Court’s jurisdiction and relate to
cases in which the Court could be seised directly. One fails to understand
how the concept of Articles XVII and XVIII of the 1947 Project, that
is, compulsory arbitration and the alternative of referral to the Court
where the parties had given their consent, came to be replaced by the new
Articles XXXI and XXXII of the Pact, respectively.

What is clear is that, as the Judgment properly records (para. 37),
although some delegates drew the attention of the Conference to possible
interpretations drawn from the newly drafted text of draft Article XVII
(now Article XXXI), there was no further discussion among the other
delegates and that another proposed version of draft Article X VIII (now
Article XXXII) was not even discussed. The delegates of the American

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States gathered in 1948 at Bogota with the lofty goal of settling interna-
tional disputes by peaceful means. Yet what they expected from the Court
is still a mystery. This leads me to conclude that the interpretation given by
the Court of “the object and the purpose” of the Pact is not sufficiently
supported.

IV

15. In conclusion, I would like to add the following comments. It
is certainly possible for States jointly to assume the obligation to accept
the Court’s jurisdiction over certain types of disputes under Article 36,
paragraph 1, of the Statute, and they can also jointly declare their accept-
ance of the Court’s jurisdiction over legal disputes, as provided for in
Article 36, paragraph 2. In cases of general dispute-settlement treaties, the
acceptance of jurisdiction over legal disputes in the framework of
Article 36, paragraph 1, of the Statute, can be equated, in effect, with the
acceptance of jurisdiction under Article 36, paragraph 2. Such an obliga-
tion must, however, be assumed in an unequivocal manner. For example,
as previously stated, the 1949 Revised General Act for the Pacific Settle-
ment of International Disputes provides that disputes “shall be submitted
for decision [to the Court]” and the 1957 European Convention for the
Pacific Settlement of Disputes states that the parties “shall submit [dis-
putes] to the judgment of the... Court”.

It cannot be denied that the parties to those two treaties accept
the Court’s jurisdiction within the limits of Article 36, paragraph 2, of the
Statute, though it remains to be seen whether the instruments constitut-
ing a declaration of acceptance of the Court’s jurisdiction should not have
been deposited under Article 36, paragraph 4, of the Statute, or whether
the simple registration of the treaties in question with the United Nations
Secretariat, pursuant to Article 102 of the United Nations Charter, might
be looked upon as a substitute for the requirement of that paragraph of
the Statute.

I hesitate to assimilate the Pact of Bogota to those two treaties for
the following reasons: firstly, as I explained above, the existence of Ar-
ticle XXXII complicates the Pact’s system of peaceful settlement because
this particular Article, by its ambiguous content, casts doubt upon the
intention of the parties to accept the Court’s compulsory jurisdiction.
Secondly, unlike the two other treaties of a general dispute-settlement
nature, the Pact of Bogota, although providing for a general obligation to
settle international disputes, does not specify the use of any particular
procedure, except for resort to the Court in certain cases, and thus the
choice of peaceful settlement procedures is to be made jointly by the
parties. Thirdly, and more significantly, it will be clearly apparent from

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what has been stated above that no delegate at the Bogota Conference ever
expressed his country’s readiness to confer compulsory jurisdiction on
the Court by virtue of the forthcoming Treaty, although some delegates
were aware of the possible implication of the text to be adopted. It is accord-
ingly true to say that the present text of the Pact emerged without any
clear indication of the parties’ real intention.

16. The Permanent Court of International Justice, as quoted in the
Judgment (para. 16), once mentioned

“the fact that [the Court’s] jurisdiction is limited, that it is invariably
based on the consent of the respondent and only exists in so far as this
consent has been given...” (case concerning Mavrommatis Palestine
Concessions, 1924, P.C.I_J., Series A, No. 2, p. 16).

It also stated:

“When considering whether it has jurisdiction or not, the Court’s
aim is always to ascertain whether an intention on the part of the
Parties exists to confer jurisdiction upon it.” (Case concerning
the Factory at Chorzôw, Jurisdiction, Judgment No. 8, 1927, P.C.IJ.,
Series A, No. 9, p. 32.)

The present Court accepted the validity of this principle in the Interpre-
tation of Peace Treaties case, in which it stated that “[t]he consent of States,
parties to a dispute, is the basis of the Court’s jurisdiction in contentious
cases” (1.C.J. Reports 1950, p. 71). The Court, in the case of the Monetary
Gold Removed from Rome in 1943 (Preliminary Question, Judgment, ILC.J.
Reports 1954, p. 32), referred to “a well-established principle of interna-
tional law embodied in the Court’s Statute, namely, that the Court can
only exercise jurisdiction over a State with its consent”. More recently, the
fundamental principle mentioned in the 1950 case was reiterated in the
Application for Revision and Interpretation of the Judgment of 24 February
1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya) (LCJ. Reports 1985,
p. 216).

Insum, one cannot lay too much stress upon the paramount importance
of the expression of the acceptance of the Court’s jurisdiction, which is
invariably required for the Court to entertain a case, as the first and criti-
cal task of the Court is always to ascertain the intention of the Parties. I
doubt whether this particular point has been given all the weight due to it.

(Signed) Shigeru ODA.

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