[Treaty] [text in Spanish]

A-42: AMERICAN TREATY ON PACIFIC SETTLEMENT (PACT OF BOGOTA)

ADOPTED AT: BOGOTA, COLOMBIA                                            
DATE: 04/30/48
CONF/ASSEM/MEETING: NINTH INTERNATIONAL CONFERENCE OF AMERICAN STATES           
ENTRY INTO FORCE: 05/06/49,  IN ACCORDANCE WITH ARTICLE LIII OF THE TREATY    
DEPOSITORY: GENERAL SECRETARIAT, OAS (ORIGINAL INSTRUMENT AND RATIFICATIONS)

TEXT: OAS, TREATY SERIES, NOS. 17 AND 61
UN REGISTRATION: 05/13/49  No. 449     Vol. 30    
OBSERVATIONS: As this Treaty enters into force through the successive ratifications of the Parties, the treaties, conventions and protocols mentioned in Article LVIII cease to be in force with respect to such Parties.

GENERAL INFORMATION OF THE TREATY: A-42

*DECLARATIONS/RESERVATIONS/DENUNCIATIONS/WITHDRAWS

A-42. AMERICAN TREATY ON PACIFIC SETTLEMENT
"PACT OF BOGOTA"

1. Argentina:

(Reservation made at the time of signature)  

The Delegation of the Argentine Republic, on signing the American Treaty on Pacific Settlement (Pact of Bogotá), makes reservations in regard to the following articles, to which it does not adhere:

1) Article VII, concerning the protection of aliens:
2) Chapter Four (Articles XXXI to XXXVII), Judicial               
Procedure: 
3) Chapter Five (Articles XXXVIII to XLIX),                       
Procedure of Arbitration;
4) Chapter Six (Article L), Fulfillment of Decisions.             
Arbitration and judicial procedure have, as institutions, the firm adherence of the Argentine Republic, but the Delegation cannot accept the form in which the procedures for their application have been regulated, since, in its opinion, they should have been established only for controversies arising in the future and not originating in or having any relation to causes, situations or facts
existing before the signing of this instrument.  The compulsory execution of arbitral or judicial decisions and the limitation which prevents the states from judging for themselves in regard to matters that pertain to their domestic jurisdiction in accordance with Article V are contrary to Argentine tradition.  The protection of aliens, who in the Argentine Republic are protected by its Supreme Law to the same extent as the nationals, is also contrary to that tradition.

2. Bolivia:

(Reservation made at the time of signature)

The Delegation of Bolivia makes a reservation with regard to Article VI, inasmuch as it considers that pacific procedures may also be applied to controversies arising from matters settled by arrangement between the Parties, when the said arrangement affects the vital interests of a state.

3. Ecuador: 

(Reservation made at the time of signature) 

The Delegation of Ecuador, upon signing this Pact, makes an express reservation with regard to Article VI and also every provision that contradicts or is not in harmony with the principles proclaimed by or the stipulations contained in the Charter of the United Nations, the Charter of the Organization of American States, or the Constitution of the Republic of Ecuador.

4. United States: 

(Reservations made at the time of signature)

1. The United States does not undertake as the complainant State to submit to the International Court of Justice any controversy which is not considered to be properly within the jurisdiction of the Court.

2. The submission on the part of the United States of any controversy to arbitration, as distinguished from judicial settlement, shall be dependent upon the conclusion of a special agreement between the parties to the case.

3. The acceptance by the United States of the jurisdiction of the International Court of Justice as compulsory ipso facto and without special agreement, as provided in this Treaty, is limited by any jurisdictional or other limitations contained in any Declaration deposited by the United States under Article 36, paragraph 4, of the Statute of the Court, and in force at the time of the submission of any case.

4. The Government of the United States cannot accept Article VII relating to diplomatic protection and the exhaustion of remedies.  For its part, the Government of the United States maintains  the rules  of diplomatic  protection, including the rule of exhaustion of local remedies by aliens, as provided by
international law.

5. Nicaragua: 

(Reservation made at the time of signature) 

The Nicaraguan Delegation, on giving its approval to the American Treaty on Pacific Settlement (Pact of Bogotá) wishes to record expressly that no provisions contained in the said Treaty may prejudice any position assumed by the Government of Nicaragua with respect to arbitral decisions the validity of which it has contested on the basis of the principles of international law, which clearly permit arbitral decisions to be attacked when they are adjudged to
be null or invalidated.  Consequently, the signature of the Nicaraguan Delegation to the Treaty in question cannot be alleged as an acceptance of any arbitral decisions that Nicaragua has contested and the validity of which is not certain.

Hence the Nicaraguan Delegation reiterates the statement made on the 28th of the current month on approving the text of the above mentioned Treaty in Committee III.

(Reservation made at the time of ratification)

With the reservation made at the time of signature.

6. Paraguay:

(Reservation made at the time of signature) 

Paraguay stipulates the prior agreement of the parties as a prerequisite to the arbitration procedure established in this Treaty for every question of a non-juridical nature affecting  national sovereignty and not specifically agreed upon in treaties now in force.

7. Peru:  

(Reservation made at the time of signature)

1. Reservation with regard to the second part of Article V, because it considers that domestic jurisdiction should be defined by the state itself.

2. Reservation with regard to Article XXXIII and the pertinent part of Article XXXIV, inasmuch as it considers that the exceptions of res judicata, resolved by settlement between the parties or governed by agreements and treaties in force, determine, in virtue of their objective and peremptory nature, the exclusion of these cases from the application of every procedure.

3. Reservation with regard to Article XXXV, in the sense that, before arbitration is resorted to, there may be, at the request of one of the parties, a meeting of the Organ of Consultation, as established in the Charter of the Organization of American States.

4. Reservation with regard to Article XLV, because it believes that arbitration set up without the participation of one of the parties is in contradiction with its constitutional provisions. 

Peru confirmed the reservations at the time of the ratification.

On February 27th, 2006, Peru notified the General Secretariat of the OAS of the withdrawal of the reservations made to articles V, XXXIII, XXXIV, XXXV and XLV of the American Treaty on Pacific Settlement, “Pact of Bogota”.

8. Chile: 

(Reservation made at the time of ratification)

Chile considers that Article LV of the Pact, in the part that refers to the possibility that some of the Contracting States would make reservations, must be interpreted in the light of paragraph No. 2 of Resolution XXIX adopted at the Eighth International Conference of American States.

Permanent Panel of American Conciliators  

(Information provided in accordance with Article XVIII)

On August 19, 1987, the Government of Chile notified the General Secretariat the appointment of Messrs. Julio Phillipi Izquierdo and Helmut Brunner Noerr to be members of the Permanent Panel of American Conciliators for a three year period.  Such period started on October 21, 1987, the date on which the General Secretariat received from Messrs. Phillipi and Brunner the acceptance of their
appointments.

9. El Salvador

DENUNCIATION

Pursuant to article LVI the American Treaty on Pacific Settlement, “The present Treaty shall remain in force indefinitely, but may be denounced upon one year's notice, at the end of which period it shall cease to be in force with respect to the state denouncing it, but shall continue in force for the remaining signatories.

The denunciation shall be addressed to the Pan American Union, which shall transmit it to the other Contracting Parties”.

Similarly, that article states that such “denunciation shall have no effect
with respect to pending procedures initiated prior to the transmission”

¬
1. El Salvador notified denunciation November 24, 1973

Text of the denunciation:
San Salvador, November 24, 1973


His Excellency Galo Plaza
Secretary General of the
Organization of American States
Washington, D.C.


Excellency,

I hereby wish to notify the General Secretariat which you head, the successor to the Pan American Union, that the Republic of El Salvador is denouncing the American Treaty on Pacific Settlement, or “Pact of Bogotá,” adopted at the Ninth International Conference of American States, held in Bogotá, Colombia, from March 30 to May 2, 1948. I would ask you to kindly transmit a copy of this note
to the other High Contracting Parties.

The reasons that have prompted the Government of El Salvador to withdraw
from this collective agreement, thus freeing it from the obligations
it thereby assumed with respect to the other contracting parties,
are essentially the following:

On numerous occasions, El Salvador has expressed its absolute willingness and its firmest intent to work to develop an effective instrument for the peaceful settlement of disputes among the countries that make up the inter-American regional system.

It would take a long time indeed to cite the numerous proofs which would justify that assertion–which demonstrate the undeniable desire for peace that has characterized El Salvador in the past and distinguishes it in the present, and that it will doubtless preserve in the future, as one of the best traits of a people with a strong yearning to achieve the goals of individual and collective progress.

El Salvador participated with great interest and enthusiasm in the deliberations of the Ninth International Conference of American States, and the Salvadorian delegates to that important regional meeting signed the instrument that is now being denounced, which was ratified soon thereafter by the corresponding authorities of the Government of the Republic.

The signing and ratification by El Salvador of that multilateral agreement
entailed an obligation, based on reciprocity, with all the other countries of the Americas, through the structure and mechanisms of an appropriate instrument consistent with the purposes for which it was designed.

Despite the spirit of complete solidarity that reigned when the Pact of Bogotá
was signed by the delegates of the 21 participating states, only a few of them have ratified it to date, in other words, 25 years after its adoption.

The realities that have become apparent over time as a result of the failure
of a large number of signatory states to ratify it show that the system developed in the Pact of Bogotá has not proven effective for the purposes that inspired it, and that it is not acceptable to many states of the Americas, since several of them signed or ratified it with reservations and not all new members
of the Organization have acceded to it.

This has led El Salvador to reconsider its position within a multilateral treaty that, because of circumstances, has found itself immersed in the aforementioned realities–a reconsideration that has led it to adopt a new attitude vis-à-vis the views of the states that make up the inter-American system.

2. On the other hand, the application of some provisions of the Pact of Bogotá
could put the Republic of El Salvador in situations that are contrary to the spirit and the letter of constitutional principles currently in force that enshrine its sovereignty and integrity and that did not exist when the Pact
was ratified by our Republic. The foregoing has also been a powerful reason
for the current Government of El Salvador, inspired at all times by the purpose
to solve its international disputes directly and peacefully, to watch at the same time over the preservation and effective implementation of the constitutional principles that govern the life of the Republic and
that reflect the feelings and the desires of the Salvadorian people.

3. Although El Salvador has decided to denounce the Pact of Bogotá, this does not mean that it is rejecting all forms of peaceful settlement of international disputes, as it is aware of the need for these forms and recognizes that there are other pertinent provisions within the inter-American system, in particular in the Charter of the Organization of American States and in the Inter-American Treaty of Reciprocal Assistance, as well as in the Charter of the United Nations, that prohibit the use of force except in cases of legitimate defense, guard against aggression, and make resources available to states to settle disputes through specific peaceful procedures.

The situation mentioned above is precisely that of the states of the Americas
that signed but did not ratify the Pact of Bogotá, that signed and ratified
it with reservations, or that did not even accede to it.

Lastly, my government wishes to place on record that if El Salvador is now denouncing the Pact of Bogotá for the reasons expressed–a denunciation that will begin to take effect as of today, it reaffirms at the same time its firm resolve to continue participating in the collective efforts currently under way to restructure some aspects of the system in order to accommodate it to
the fundamental changes that have occurred in relations among the states of the Americas.

I would ask you once again to arrange to have this denunciation circulated
to the other High Contracting Parties.

Accept, Excellency, the renewed assurances of my highest consideration.

Mauricio A. Borgonovo Pohl
Minister of Foreign Affairs of El Salvador

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