Regardless, it seems that other states have appealled to Article XXXI with little consideration of Article XXXII: the other recent case is the 2008 Aerial Herbicide Spraying Case (Ecuador vs. Colombia), still in its initial stages. Here, Ecuador makes no attempt to prove that it has used any other means of peaceful dispute settlement, prior to referring the case to the ICJ.

Great post, thank you. I have amended my post at the Invisible College to take account of some of your statements (and of events).

I have to say I’m a little less enthusiastic about the idea that the present government of Honduras had no right to act for the State and bring the case. Nor do I really think it probable that the Court will be eager to plunge into Honduran constitutional law. I imagine, however, that the constitutional crisis and international furore may well have some relevance to the substantive law of the case.

Above all, however, I rather suspect – without making any predictions and with some regret – that today’s events at Tegucigalpa have put a very early end to the case. We’ll see.

Matthias,

Thank you for your point. I thought it had a lot going for it, but then I found, to my surprise, what the ICJ has made of Article XXXII. Your question, more or less precisely, came up for decision in Border and Transborder Armed Actions (Nicaragua v Honduras), ICJ Reports (1988) 69. Somewhat ironically, it was Honduras which relied on Article XXXII as imposing conditions on the grant of jurisdiction by Article XXXI.

Here’s what the Court said on the relationship between Articles XXXI and XXXII (in its conclusion on the point, at pp 89-90, para 47):

“In short, Articles XXXI and XXXII provide for two distinct ways by which access may be had to the Court. The first relates to cases in which the Court can be seised directly and the second to those in which the parties initially resort to conciliation.
In the present case, Nicaragua has relied upon Article XXXI, not Article XXXII. It is accordingly not pertinent whether the dispute submitted to the Court has previously been the subject of an attempted conciliation, nor what interpretation is given to Article XXXII in other respects, in particular as regards the nature and the subject-matter of the disputes to which that text applies. It is sufficient for the Court to find that the second objection put forward by Honduras is based upon an incorrect interpretation of that Article and, for that reason, cannot be accepted.”

Article XXXII, in other words, is (apparently) not a condition applicable to jurisdiction under Article XXXI, but establishes a separate title of jurisdiction. I admit I would have found this more credible if the Court had deigned to explain to which different categories of cases the two articles apply. But however that may be, the Court has put Article XXXII out of the picture for our present purposes.

I think you are right to describe this as the Court ‘overriding’ a procedural requirement. That, of course, is what the Court has also, by different means, done to similar clauses (which it has treated as conditions to the grant of jurisdiction) in the Tehran Hostages and Oil Platforms cases and in the recent (provisional measures phase of the) case of Georgia v Russia.

I believe that if the political agreement that seems to have been signed really comes into effect, we might not see the case go any further.

However, even if no political solution is found in the short term, I wonder whether the 1948 Pact of Bogotá can really ground the Court’s jurisdiction in the present case. Although Article XXXI does indeed involve an acceptance of the compulsory jurisdiction, Article XXXII seems to suggest that the jurisdiction of the Court can only be exercised if, and when, all previous methods of peaceful settlement of disputes have failed. This, I suppose, would require that Honduras show that it attempted to negotiate, and failing that, that it attempted to establish an arbitration. Honduras not only failed to do both, but actually threatened to ‘remove the embassy status’ from the building and issued threats and ultimatums to the Brazilian government.

I wonder whether the ICJ could override this procedural requirement and declare itself competent nonetheless.

First, if the case does advance to the merits, i.e. if the Court dismisses the eventual Brazilian preliminary objection that the current government of Honduras was not competent to lodge an application, the substantive issues that the Court will have to address will bear some resemblance to one of its earliest cases, Asylum (Colombia v. Peru).

Second, an examination of the merits may again require the Court to examine the lawfulness of Zelaya’s deposal. One could agree in principle with the current Honduran government that international law requires the state which has granted certain persons diplomatic asylum to prevent these persons from conducting ‘manifestly illegal activities’ from its diplomatic premises. But the question then is precisely whether Zelaya’s activities are ‘manifestly illegal’, which again raises the issue of the lawfulness of his removal.

All in all, this will really be a nice case to watch. And if Honduras actually requests interim measures, as it said it might, then we’ll know the Court’s answer to some of these questions sooner rather than later.